Thomas Jefferson's Reaction to the Constitution of 1787 During the Period of Its Ratification: September 17, 1878 - March 4, 1789 Paul D

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Theses and Dissertations

1964 Thomas Jefferson's reaction to the Constitution of 1787 during the period of its ratification: September 17, 1878 - March 4, 1789 Paul D. Caravetta Lehigh University

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,• ABSTRACT

Thomas Jefferson had to view the framing and ratlfleatton of the

Constitution of 1787 from _France. There he had become a-cquatnted, at

ftrst hand. witti. gureopean opinions of the American government. lie had aeen how deflclencles In the Articles of.Confederation failed to pro• . . vtde for a political order whlch the Europeans would respect. They

looked at the Congr@se ae an impotent body and the United States as a

I .,· ,' '· mere collection of autonomous 1··. states. . l ' ~.. ,,~Or' ..~-· :Jefferson became convtnced of the need ,: for reform. He thought 'I

• I I elude regulation of commerce, an independent Income, and responsib111ty

for the total debt of the nation would be sufficient. The movement to grant Congress the potver to regulate co'Cll\1!8rce bagan with the Annapolis

Comrneretal Convention. This convention did not accomplish its ends.

Only five states atte~ded, but their delegates issued a resolution to the states to send delegates to Philadelphia to consider a general revision of the federal government.

' The Philadelphia C~nvention convened as a functioning body on : I ·~ . the twenty•flfth of t1ay, 1781. It deliberated in secret until the seven• teenth of September. The Constitution was proposed to the states for ratlflcatton.

I ._:..;;...- r!-·, ' Jefferson had formed hls first lmpresaJons I -~ within two months. He ' I did not like the Constitution. .j He did not understand the reasoning rl :I ' :I . ·1- l I •.;.r

behind the· making of a new constitution and the overthrowing of the old. Besides, the new one had no bill of rights, no provtslon to limit the number of termsof 'the executive office, and no means of curtailing the

axerc!so of govc~1£Mt12ntal power ~1hlch could be brought to bea:r directly on the citizen.

He proceeded to flood the malls with letters to friends. Be

elucidated his reaction to tt1e Const! tutlon in its ent!,sety or 1 ts parts,

. '. At first, he referred to !t as a degeneg,aey of Amer!can'l!berty. He '

liberty· could ascribe to a constitution whlch did not guarantee the_m

their rtgl,ts. t.J!th reflection and discussion, he came to see the

did so, though, with two reservations. He wanted a Bill of Rights and an amendment to llm!t the tenure of the executive.

In the quest for a stable govern.rnent wh!ch tveuld adequately fulfill the

expectations and desires of the people, he did not -viant to see· the

countr)1 saddled with one which was no better than that against which they ~~had rebelled.

He realized that the Constitution would provide, quite reasonably,

:,: what he considered to be good governtnent. He t11as anxiot1s that the seeds

of lts own destruction wtth!n lt be removed. The government bad to be

the liberties of the people. He finally came to accept the Constitution ; ..... - -· as the 0 wisest ever yet present~d to man." Unde~ it, there would be a

provide for the republic in the future.

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THOMAS JEFFERSON'S REACTION -TO THE CONSTITUTION

'• -OF 1787 DURING THE PERIOD -OF ITS RATIFICATION: ,ifo . i SEPTEMBER 17 1 1787 - MARCH 4 2 1789

·.w.

Paul, Danf.el Caravetta

A THESIS

Presented to the Gr~duate Fa~ulty

of Lehigh University

in Candidacy for the Degree of

Master of Arts

Lehigh University - Bethlehem, Pennsylvania ,,

1964

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This thesis is accepted and approved in partial fulfillment of

·the requirements for the degree of Master of Arts. i

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ACKNOWLEDGEMEN·TS

The preparation of this thesis has required the variou~

. contributions f ro1n persons other than the author. He must acknowledge

with gratitude the guidance of Dr. George w. Kyte. Additional thanks '., I are ow~d to nr. Kyte for his original suggestions to inquire into Mr.

Jefferson's reaction to the Constitution of 1787. The recommendations . .

which Dr.. John' Cary, the Head of the Department of Hi'story, made are also appreciated. Dr. C~ry suggested additional reading which led the

author to a deeper understanding of the implications of the framing of

the Constitution and to avoiding the pitfalls in the complexities of ' ) the Confederation period.-

The author must also acknowledge the use of the library . J resources on Thomas Jefferson of the University Library of Lehigh

.~ University, the Harvey Memorial Library of Moravian College, and the

b .. Library of Lafayette College. .,_

Finally, the encouragement of my wife, Joyce, sustained me and

!I helped make this work possible. Her patience, though at times

strained, endured to the end; and she has welcomed the presence of " Mr. Jefferson into our home •

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• I ' Thoma·s Jefferson went to London in l-·1arch, 1786, to collabor·ate with John 1\dams in the negotiating of a treaty with · Portugal. r\dams wa·nted a portrait of his friend and commissioned ·• .: at her Brown to do .it.

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TABLE OF CONTENTS

Chapter Page

ABSTRACT • • • • • . ... • •• • •• •• • •• -~. . . 1

INTRODUCTION • • • • • • . .. ,• •: ~ ... •. .•. . ~ ... •· 3 .·-·~· ......

• I. JEFFERSON IN FRANCE • • • • • • • • • • • ...... -~ .. • • 10

II. JEFFERSON'S REACTION TO THE ,, ANNAPOLIS AND PHILADELPHIA CONVENTIONS •••• • • • • . .. . •• 22

III. JEFFERSON'S REACTION TO THE CONSTITUTION • • • . • • • =• 37 -~ _T ,<) • •

IV. JEFFERSON AND THE TRIPARTITE FORM OF GOVERNMENT OF THE CONSTITUTION •- • -- .• .•. -• • -• • • • • • • •• 50 ) / v. JEFFERSON AND THE NATURE OF THE GOVERNMENT UNDER / THE CONSTITUTION • • • • . • • • . • • • • • • • • • • 69

VI. JEFFERSON ·AND THE BILL OF RIGHTS • • • • • • • • • • • • • 77

VII. JEFFERSON AND THE MOVEMENT FOR A SECOND CONVENTION • • • • 93

VIII. CONCLUSION • • • • • • • • • • • • • . e I • • • • • • • • • • 98

BIBLIOGRAPHY • • • .. :. .. • ·e·: •=' • ... . . ·•· . ••• ••• • • 104 VITA •••• 107 .--~ • • • • • • •· e: • ·:e· ·• .•· ··=·f ·• :e ·• •. •· e, • • • .t .. ·.

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ABSTRACT ·.Thomas Je'fferson had to view the framing and ratification of the·' Constitution of 1787 from France~ There he had become acquainted, at first hand, with European opinions of the American government. He had seen how deficiencies in the Articles of Confed~ration failed to pro- . vtde for a political order which the Europeans would respect. They looked at the Congress as an impotent body and the United States as a mere collection of autonomous states.

Jefferson became convinced of the need for reform. He thought several amend~ents which would extend the powers of Congress to in clude regulation of commerce, an independent income, and responsibility / for the total debt of the nation.would be sufficient. The movement to grant Congress the power to regulate commerce began with the Annapolis ""- Commercial Convention. This convention did not accomplish its ends. Only five states attended, but their delegates issued a resolution to , the states to send delegates to Philadelphia to consider a general revision of the federal government. The Philadelphia Convention convened as a functioning body on the· twenty-fifth of fl.1ay, 1787. It deliberated in secret until the seven- . teenth of September. The Constitution was proposed to the states for ratification.

Jefferson had formed his first impressions within two months. He did not like the Constitution. He did not understand the reasoning

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J behind the making of a new constitution and the overthrowing '4~ of the old.

Besides, the new one had no bill of rights, no provision to limit the

number of ~erms ci. tthe executive office, and no means of curtailing the

exercise of governmental power which could be,. brough't to bear directly on the citizen.

He proceeded to flood the mails ·with letters to friends. He J.

elucidated his reaction to the Constitution ·in its entirety or its parts.

At first, he referred to it as a degeneracy of Americari liberty. He

·could not understand how the Americans who were so jealous of their

liberty could ascribe to a constitution which did not guarantee them

their rights. tii th reflection and discussion, he came to see t'he inherent wisdom of the new instrument of government and accepted it. He l

did so, though, with (two reservations. He wanted a Bill of Rights and an amendment to limit the tenure of the executive.

Jefferson was concerned for bis country during this trying time.

In the,quest for a stable government which would adequately fulfill the

expectations and desires of the people, he did not want to see the

country saddled with one which was no better· than that against which th~y had rebelled.

He realized that the Constitution would provide, quite reasonably, what he considered to be good government. He was anxious that the seeds of its own destruction within it be rem:,ved. The government had to be kept from subverting itself through its natural tendency to encroach upon the liberties of the people. He finally cam~' ,. to accept the Constitution as the "wisest ever yet pres.ented to men." Under it, there would be a government which could. fu,l_fill the needs of the moment and which would provide for the republic in the future. ,-

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INTRODUCTION

The American experiment in constitutional republican government and the transition from the Articles of Confsderation to the . 'Constitution had attracted the attention of the devotees of constitutional government of the eighteenth century;;.· The new nation had· operated relatively well under the Articles of. Confederation. Never theless, the exhilaration of the newly-gained freedom brought on an impatience with the calm, slow-moving democratic process of the Articles of Confederation. American . - ·~ trade and commerce found new channels for expressing its genius. Manufacturing st·imulated ' . by the War of Independence sought protection from foreign manufactures. . The situation

which had ~ evolved demanded action, and merchants and manufacturers became impatient with democratic government. A more energetic governmen~ which possessed . the necessary machinery.that favored the commercial l and industrial classes was deemed necessary~ 1 Merrill Jensens, The Nei11 Nation, (New York: Alfred A. Knopf, 1950)·, 407 !i) 417°19 and 4,240 Hereafter cited as Jensen, New Nation. Jensen alluded Professor to the impatience of the commercial and industrial groups within the Confederationo By st:ressin.g the vitality Jfather than the lt:1ealtness and sluggishness ~1hich had p1eeviously chaiacte:rizeci the Confederation~ he made a case fo:r a situation for l·1hich tilme had run outo The Ame~ican experiment was working 9 and the country was recovering from the effects of the wa~~ the dislocation and of its t~ade, getting itself diplomatically recognized as an.independent But nation. things c@uld have been· bettero The· fail~re of .and the Impost of 1781 the Finance Plan of 1783 only caused more restlessness on the and brought events of 1786 and 1787, the Annapolis Commercial and the Convention Philadelphia Constitutio~al Convention. · , . • ,I,' -3-

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The result of the struggle between the federalists who wanted to . maintain state sovereignty as espoused by the Articles of Confederation

and the nationalists who saw the possibility of the fortunes of the

country faring more richly under a strong central government, gave birth

to the Constitution of 1787. To gain their ends, the nationalists 2 thwarted the movement to reform the Confederation.· The nationalists

... were able to gain their ends in the struggle for a stronger central

J government because they stood for the unity of the United St~tes. The

retension of unity became the most rational and influential facet of 3 their argument. There were those who wanted to insure the unity of the nation, but

at the same time they did not want to sacrifice the individual liberty

of the states either by the dissolution of the states in an extreme ••••_, ...... ~ .. --·""T-P---~ !

form of centralization or by their subordination in a more mild form.

One of these people was Thomas Jefferson, who saw the key to future

American greatness in the closer union of the states. Yet he did not

feel that the Articles of Confederation had to be replaced because they

were inadequate. He knew that they needed reforming to overcome their

weaknesses. Specifically, Congress needed an independent income to take

care of its obligations adequately and provide for the payment of the .. national war debt.· In addition, there had to be·a means of regulating ,. 4 :, trade so that it would be uniform in all the states. Jefferson's

2 Jensen, New Nation, 407, 419-21. 3 Ibid., 415. 4 Thomas Jeffei-son to. Archibald Stuart, January 25, 1786, Julian P. ) .·- .. I' Boyd, ed$, · The Papers of Thomas Jefferson, (Princeton: The Princeton University Press, 1950- ), IX, pp. 217-18. Hereafter cited as Boyd, . Papers. -5- ...: solution would have amended the -Articles to give st-rength to the structure of government •

. · Thomas Jefferson had been the American minister to France since ,.;,. ·;a,_ .; March, 1785. From Paris, ·he had observed the formation of the -new government under the Constitution of 1787. Before leaving France to take up his new position as Secretary of State in the first administration, Jefferson had come to accept the Consti tuti.on as a means of providing the best of all possible governments for the United States. He had struggled with himself to reconcile the structure of government as pro posed by the Constitution with what he had considered to have been the g_overnment which would give man the maximum , happiness and 1 i berty with the.least coercion. ' By means of discussion and deliberation, he came to see the wisdom of the new instrument of government. There were features in the Constitution which Jefferson could not accept. The glaring absence of a declaration of rights brought on a discussion with James Madison which lasted through the period of ratifi cation into the first few months of the new government. The eligibility of ·the president for re-election, Jefferson thought, would lead to a form of permanent incumbency which, he considered, would subvert republican government. Jefferson, like many of this contemporaries, feared executive rule which had not been delineated within a system of 5 · constitutional checks and balances.

This thesis will attempt to explain Jefferson's reaction to the Constitution of 1787 and how his opinion of the Constitution changed 5 Max Farx."and, The ,• Framing 2!. the Constituti.on of the United States, (New Haven, Conn.: The Yale University Press, 1913), 77-79. Hereafter cited as F~rrand, Constitutione

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;:,~~ .. .------· from disapproval to a hearty, though qualified, acceptance of it •.

Jefferson did not want to see the Articles ·of Confederation superceded

as has been previously mentioned. He considered them as forming an ideal L de·mocratic government. Nevertheless, his diplomatic work caused him to

realize that t~ey were inadequate for a government which had to take its

" place on an equal basis with the powers of Europe. Jefferson was no 6 iconclast. He wanted to reform slowly. He would have been satisfied

with- the amending of the Articles by several amendments and not over

throwing the former instrument of _·government in favor of the Constitution of 1787.

It will be nece~sarfto determine Jefferson's opinion of the

Philadelphia Convention which framed the new constitution between ~fay

10 and September 17, 1787. He had not been fully aware of the intentions

of the 'convention and was chagrined when he learned that the democratic Articles of Confederation were to be shelved.

Besides his years of experience as a diplomat, a legislator, and a

lawyer, Jeff_erson had written on two different occasions, since 1776,

two constitutions which he had hoped would have been the bases for the

• I government of his state, Virginia. The first one, the I I Draft Constitution I

, .. I I of 1776, he had composed hurriedly in June of 1776 while he tJas in

.. .: •. Philadelphia working on the Declaration of Independence. He had sent it

,, too late to have any effect on the deliberations of the Virginia Assembly ... which had completed its work. The constitution which was enacted failed

to provide a democratic foundation for the state government. Shortly afterward, Jefferson as a member of 0 the legislature promoted a liberal

pr-ogram of legislat.ion which aimed at disestablishing the Anglican

6 \ Jefferson to John Ada~, November 13, 1787, Boyd, Papers, XII, pp. 350•51. I

.' -~ ""' ., ' -7- .,. Church and providing for religious liberty, ending the entailing of

estates, ·finding ' . a means- for emancipating the slaves, and codifying .7 Virginia's lat--1s. He hoped in some way io achieve what the Virginia T. legislators of .1776 had failed to do. The Virginia ·"· Constitution of 1776 had been enacted by an assembly 8 which had . . not been elected and convened as a constitutional convention. Since this was the case, Jefferson considered the instrument of govern- 9 ment to be invalid. In addition, the constitution had never been presented to t~e people for ratification. Jefferson hoped for a. constitutional convention to frame a new constitution. In 1783, when there was the possibility tha.t such a convention might be convened,· Jefferson prepared his second constitution. He was frustrated for a second time. He could not take part in the framing of a republican government for his state in 1776 and the convention of 1783 never materialized. Jefferson's constitutional thought finally found expression and dissemination when he published his Notes 2!!. Virginia while in Paris in 1786. 1 He appended his 1783 constitution to the Notes i under the title, 10 Draught 2f ~ Fundamental Constitution for the Commonwealth~ Virginia. The second composition included the ideas of the 1776 draft. Jefferson's 7 Adrienne Koch and William Peden, eds., The Life and Selected Writings of !!l~lfiS~ Jefferson 9 (New York: The ModernaLibrary, 1944), 38, 39, 40- 41, 44r;. and 470 Hereaft~r cited as Koch and Peden, 8 Writings.

...... ,. -·· ,_ ··--·-.• .. -- -·-· .. -· .. • *'Notes on VirginiaS>VU Ibide ~ 239c40 and 242 • 9 "Notes on Virginia," Ibid., 240=41. 10 Saul K. Padover, ed., The Coinplttf! lefferson, (New York: Duell, Sloan, and ~ierce, 1943), "Draft of a Constitution for Virginia,'' 110-20. Hereafter cited as Padover., Complete Jefferson.

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... :,·. \ -8- . constitution provided for a tripartite form of government with the

0 essential power of government vested in the legislature. He did this by

having the system of checks and balances operate in favor .of the legis-

lature. The executive and judicial branches were appointed by the legis- .· 11 lature and subject to it. There were specified duti~s which were

delegated to each branch, but implied ·pol~ers belonged ·to the legislature.·

, In effect, the executive remained solely an administrative department of s~.{,~ 12

'. the legislature. The American experience with arbitrary executive

rule made Jefferson and his contemporaries suspicious of any kind of

government which was responsible to other than the legislature, the

direct agency of the people. The colonial governors of Virginia had

been responsible to London and· had governed without giving due recog- 13 nition to the colonial legislature.

Jefferson was a devoted advocate of constitutional government. He

believed in a government of law tvhich preserved the dignity of all

citizens. His experience equipped him to.be an interested observer ·and

an info~med critic of both the Constitutional Convention and the

Constitution of 1787. As a member of the Continental Congresses, a

legislator of Virginia, and-.a lawyer, he evaluated empirically his study of

the structure of republican government and continually exchanged his

observations and opinions on it with friends and colleagues. As a dip

I ,.' ,; lomat he was able to view the Confederation and the Constitution from

11 Padover, Complete Jefferson, 114-15 and 116-17. 12 Ibid., 114. 13 :Max Sa~lle, The.Foundation of American Civilization, (New York: Henry Holt and Company, 1942), 626-28. I

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abroad and: obtain at first hand t'he reactions .of Europeans.

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""':?•. I. JEFFERSON IN FRANCE

niomas Jefferson had gone to France to jdin Benjamin Franklin and

John Adams in the negotiation of treaties of commerce and amity with a

multitude of European nations. According to the instruction of Congress i I

• 4 I 29, 1783, the ministers- Jefferson, Franklin, and Adams- had ! of October I I l been empowered to negotiate trea_ties with Russia, the Hapsburg Empire, I . Prussia, Denmark, Saxony, Great Britain, Spain, Portugal, Genoa,

Tuscanny, Rome, Naples, Venice, Sardinia, and the Ottoman Porte. The

policies of the European powers of favoring their own interests and

economies were to become formidable barriers for the ministers to

penetrate. In addition, the principles outlined in the congressional

.... ~,· instructions further restricted negotiations for treaties. These

principles were novel in diplomatic circles and in direct conflict with 1 the monopolistic restrictions of the maritime nations of Europe. These

liberal American ideas favored free trade, freedom of the seas, and the

most-favored-nation principles.which granted to a foreigner the same

citizen • • rights and.privileges of the The ministers drew up as a basis of negotiation a general form of a

.. treaty. It espoused the principles which had been outlined in the \;> ~··,. instructions of Congress. In effect, the treaty form called for a more

1 0 Instructions to the Ministers Plenipotentiary appoint)~d to negotiate Treaties of Commerce with the European Nations, May 7, 1784," Andrew A. Lipscomb and Albert Ellery Bergh, edso~ The Writings of Thomas

Jefferson~ (Washington 9 DoCoi The Thomas Jefferson Memorial Association, 1904), XVII, ppo 21=27. Hereafter cited as Lipscomb and Bergh, Writings 2f. Jefferson. -I I

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definitive understanding of belligerency and neutrality. The Americans

considered of utmost importance the concept of general .neutral! ty in (

"time of tvar. This principle, 1£ accepted·, would protect merchantmen 2 from capture or molestation by privateers in time of war. The

individual and his vocation were to be divorced from matters of national

policy and not to be involved. in it. The ministers tried to c.ounter the

development of the·concept of total war· which had its inception during

this period. The Americans had to bargain for real and necessary con-~ "' cessions to protect their. commerce and national int·egrity in a world

where military force had been a matter of diplomatic policy. The United r . States needed to preserve its independence. This could only be accom- ~ 3 plished by having Europe recognize and accept it without reservation.

-Adams and Jefferson were both cognizant of the dangerous impli-

/ cations of alliances to American freedom. Since .. both were aware of

European policies and machinations, they realized that treaties were

useless unless both parties were considered equals and both derived 4 mutual benefits. Adams had discussed with Jefferson the need to be

wary of being duped into granting extensive privileges beyond what al- 5 ready constituted a generous offer. In this respect Adams advised

2 "Instructions to the ~1ini sters Plenipotentiary," Lipscomb and Bergh, Writings 2f Jefferson~ XVII, 23-25. 3 "Autobiography~ uv Koch and Peden, 1-Iri tfngs, 62. ·: 4 Dumas tvialone, Jefferson and the Rights of tvtan, (Boston: Little, Brown and Company, 1951), 21-22. Hereafter cited as Rights of Man. 5 John Adams to Jefferson, September 4, 1785, Lester J~ Capponj ed., The Adams~Jeffers.on Letters, Chapel Hill: The Un:lversi ty of North Carolina Press, 1959), I, p. 61. Hereafter cited as A-J Letters • .,, }

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Jefferson that France had to be watched. Shortsighted mereantilism

formed a one way.po~tcy which denied to others any advantages enjoyed

by France. Jefferson, on the other hand, suspected that if the

Americans ever lost their happiness ·and morals, it would cqme about

because of the corrupting influence of wealth gained by trade and

industry.· For this reason, he considered agriculture the highest and 6 purest'form of work and also "the best preservative of morals." . , Jefferson was becoming, in the process of time, extremely anxious for

the maintenance of American freedom and happiness. The purpose of

government was to bring about this state; and American republican

government, in Jefferson's opinion, had accomplished it. There then had

to be the effort not only of protecting, but also keeping, th-at

I • republican government· from being either subverted at home or destroyed ·

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At the same time that Jefferson had reservations about Europe and

feared the consequences of involvement, he found a reluctance on the

~, . \ part of the Europeans to accept ' the Americans •. Jefferson lamented the

difficulty he faced in negotiating commercial arrangements in Europee

The main cause for European aversion was the American principle of the

freedom of tne seas. Cautious and always thinking of all possible

eventualities, the European states did not see the liberal advantages in

the concept. Instead, it appeared as a two~edged sword~ They rej~cted 7 it and would not make a pact attesting to the freedom of the seas.

/ 6 Jefferson to Jo~n Blair, August 13,_ 1787, Boyd, Papers, XII, 28. See also "Notes on Virginia," Koch.and Peden, Writings, 280-81. 7 Nathan Schachner, Thomas Jefferson, A Biography, (New York: Appleton Century-Crofts, Inc., 1951), I, pp. 142-43. Hereafter cited as · Schachner. :; I

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-13- . There was one exception: the three commissloners were able to con-

. summate a treaty with Prussia. This slim achievement, considering

that trade v1ith land=minded Prussia amounted to almost nothing, gave ·I/.'." .

international recognition to the concept. As Nathan Schachner pointed

out, old Frit..z.;_ffelded little; but he did gi·ve the·United States a

beginning by- which the same concession could be wrung from other nations.

Jefferson ran into another ~jor obstacle in the negotiating of

commercial treaties. ··Especially, in England there was the opinion that

Congress did not have the power to enter into treaties of connnerce 8 because its regulation was under t.he juri sdi cti on of the states.

Although Adams t,1as the minister to -England, Jefferson had had a con

versation with an Englishman who apprized him of the English situation.

Jefferson also learned that the European did not think that Congress

I .. was able to~enforce at home either its own enactments or treaties 9 which it had ratified.

Jefferson did find his own negotiations embarrassed because of 10 the nature of Congress under the Articles of Confederation.

According to the Articles, the corrnnerce of a nation was subject to

regulation by the ·states· u·nless there existed a commercial treaty between the United States and that nation. This.treaty then gave the

I jurisdiction •, of the regulation to the Co~gres_s because all treaties 8 Jefferson to Adams, July 7, 1785, A·J Letters, I, 38·39. 9 t~illiam Carmichael to Jefferson, July 15, 1786, Boyd, Papers, X, 138. Specifically on the British reluctance to deal with Congress~ see: Jefferson to John Adams, July 7, 1785, A~J Letters, I, 38-39 and American Commissioners to John Jay, April 25, 1786, Boyd, Papers, IX, 406-07. · ···10 1 A-J Letters, I, 61.

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I•, -14- -- entered into 11 by Congress were binding on the states. These treatf'es· could riot, however, prevent the state legislatures from imposing duties or restrictions on the commerce with the con- ~- _tract i ng nation. Jefferson admitted that t~is qualif)ed regulation, which d'id not allow Congress to ' impose dut-ies or restrictions uniformly . throughout t.he states, was imperfect. ·Jc. ,· The -nature· of the Confederation. -.: left the essential I sovereignty to I the states. In actuality, the I regulation of the commerce remained within the 12 jurisdiction of the state. The Europeans understood this as weakness and disunity._ The Europeans took furthe.r. note· of the apparent weakness of the 13 American central government. In a·world where absolutism was the fashion, the United States did not compare favorably with the con temporary ideal. In many respects, Prussia with its stable and efficient government ~ '' '' captured the imagination of Europe. " Jefferson was sensitive of the criticism and of the estimation which he received concerning his government. He became more convinced of the need for Congress to have more extensive powers of administration. In particular, these were to deal 14 with commercial and economic matters. 11 _"Articles of Confederation," Articles VI and IX, Farrand, Constitution, 214 and· 216. Also "Answers to Demeunier' s First Queries," January 24, 1786, Boyd, 12 Papers ,X, 14-15. "Answers to Demeunier's First Queries," January P• 15. 24, 1786, Ibid., X, - 13 The European attitude toward the United States came out in negotiations that were various being carried on in the decad'e of eighties: in the Algerian the Situation, see Carmichael to Ju 1 y 15 s l 7 8 6 Jefferson, , I bi cl o 5) X ~ 13 7 ° 3 9; in the the int r i cat e deal i ng s to sett 1 e \ J\>1ississippi clai1ns '\•Ji th Spain 9 ,James Iv1adison to Jefferson, August 12~ 1786 Ibido 9 9 X~ 229°36; and Abiga-il unfavorable Adams' comments on the press the United States was receiving Adams to in England, Abigail Jefferson, October 3, 1785, A~J Letters, 14 I, po 80. "Answers to First Queries," Boyd, Papers, X, 16-17.

' . '

,' r. ~ '· -15-

In this manner, it would be demonstrated to the European nations that

Congress did have the power to make treaties an~ enforce them at home~

r ,(f. . • The granting of the power of actual regula~ion to Congress, Jefferson·

. .' thought, would give the appearance of a respectable and stable. 15 government.

Another matter which pointed out the American weakness was the

inability of Congress to meet the payment of interest on the debt held

by th.e French banks.. Al though Congress was having some financial ' ; difficulty because of the acute specie situation of the country, the 16 United States was not bankrupt as the French considered. The failure

to make payment on the interest of the debt had been just a matter of.,

confusion and procrastination of the Board of Treasury and the 17 Congress. They did not think to provide Jefferson and Adams with

adequate authority to withdraw funds on deposit in Holland. Hence, 18 American credit rapidly collapsed in France. French bankers needed

money to bolster up the government as well as their own collapsing

15 Jefferson to Madison, February 8, 1787, Boyd, Papers, IX, 264. 16 Jensen, New Nation, 310. 17 · The Commission~rs of the Treasury to Jefferson, February 16, 1787, Boyd , Paper~, XI , 16 0 -61 ; \4] i 11 i am Short to Jeff er son , 1"1a y 721 8 ,7 ,1 Ibido~ XI~ 374; and Jefferson to Adams, July 1, 1787, Ibido, XI, 517., The financial adtninistration of the ministers ~vas both a care and a matter of embarrassemento They were continually being beseeched by the French for money due on the interest which had been in arrears. To add to their difficulties~ Congress gave them little support. See Jefferson to Adams, September 4, 1785, A-J Letters, I, 60. The problem became worse and in 1787, it was critical. 18 Jefferson to John Adams, September 4, 1785, Ibid., I, 60, and John Adams to Jefferson, September 11, 1785, Ibid., I, 63. The out.come o_f. _this situation is reflected in i~i lliam Short to Jefferson, Boyd,- Papers, XI, 374. Also Jefferson to Madison, Ibid., XI, 663- · 64.

Ill I\

-16-

-----~-- · · ---·ent·erprises. They began to be impatient with the slowne·ss of Arnerfcan ,· payments. The extension of ti_~ '3d further credit could not be as

liberally granted as had previously been done.

Th~~American. financial situation, however, became acute. The '

specie situation, as has been mentioned, created some difficulty 19 collecting taxes from a population which never did like to pay taxes. -~- Their first economic measures were to curtail their co·ntributions, as 20 they called them, to Congress. Congress did not have the power to

levy taxes under the Article\ of Confederation. For its budgetary

requirements, it assessed each stat~. With a shortage of funds at ' home, Congr_ess had to borrow 1110ney abroad to meet its foreign obligations. .'.

American credit in Europe was shaken by the French bankers and the . apprehensive situation created by the financial condition of the French 21 government. Even in Holland where American credit had been sound, 22

,.. ; Jefferson learned that it began to be disparaged. Nonetheless, the ·, f. . f ' i ~ Dutch political situation caused the prospect of foreign, even American, J investment to be highly valued. Political disturbances and the threat !' of civil war provided sufficient reason for the desire to export money

,, from the country. Thus Jefferson and Adams worked at trying to transfer

.. 19 Jensen, New Nation, 304 and 417. 20 Andrew Cunningham McLaughlin, The Confederation and the Constitution, 1783Ql789~ (New York: Harper and Brothers, 1907),

80-820 Hereafter cited as McLaughlin 9 Confederation and Constitutiono Also e0Autobiography," I

. -~ '\/ . /

-17- f

the American debt from France to Holland. This move, Jefferson hoped, 23 would forestall the loss of national credit.

Practically all of the American foreign debt .which was held by the

French and Dutch banking houses had been contracted during· the War fo~

Independence. The maintenance of the interest had to be financed, fn

part, by further loans. Jefferson did not like this situation. He hoped

that American credit wou'ld collapse. Then the Americans would be forced

to pay their foreign ·QeDt in.quick order and in the future exercise 24 restraint and economy. In addition,-such a calamity would make

possible certain reforms in the government. The main benefit would be

that the United States would gain,; its financial independence of Europe.

Since Jefferson had taken up his position in France, Congress had

deteriorated as the governing body of the country. William Temple

Franklin, the grandson of Benjamin Franklin, informed Jefferson of the

pathetic state of affairs of early 1786. Congress had been unable to 25 •: carry on its work because of the lack of a quorum. Similar

information had been received from James Monroe, who fixed the cause of 26 absenteeism on the lack of interest in national affairs. . Since the

power of government really rested in the states., more interest had been 27 shown in state government than in the federal. It.. muse be remembered

.... 23 . ' Jefferson to Joh~ Jay, September 26, 1786, Boyd, PaEers, X, 405-06 •

: ~ 24 ·' Jefferson to Archibald Stuart, January 25, 1786, Ibid., IX, 217-18. 25 t.Jilliam Temple Franklin to Jefferson, January· 18, 1786, Ibid., IX, 178-80. See also Jensen, New Nation, 417. 26 James Monroe to Jefferson, May 11, 1786, Boyd, Papers, IX, 510. 27 Jensen, New Nation, 417.

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\ . ' . ... -18-

that in 1776 even Jefferson felt j. it was more important to be in the '.,~ Virginia Assembly taking part in the framing of a new government than 28 leading a committee to draw up the Declaration ·of In~ependence. Monroe's . I assertions were substantiated by John Jay. Without. the meetli·~g · 29 of Congress, ther-e existed no governt:nent.

- In order for the central government to be functioning, there had to be a quorum of nine states represented in the Congress. When Congress tvas in recess, the government was to be carried on by a "Committee of the States" as provided for by the Articles of Confederation. This \ Committee never operated effectively to maintain 30 the government. The government of the United States during the entire 28 Schachner, I, 137. 29 -John Jay to Jefferson, May 5, 1786, Boyd, Papers, 30 IX, 450-51. Under the provisions of Article IX of the Articles of Confederation, Congress had the authority to appoint a committee to sit during the recess of Congress. See "Articles of Confederation," Constitution, Farrand, 220. The committee, 11 designated as A Committee of the States 9 '° ivas comprised of one delegate from each state. This connnittee had the power to appoint other committees and civil offfcers to manage the general affairs of the United Statese many respects, In the other pov1ers delegated to the commit an executive tee made it function of the Congresso But it did efficiently not function to be effectiveo Jefferson°s lament~ which his '°Autobiographysiua he made in tvas that it was a quarrelsorrebody and quickly disintegrated? thus leaving the ngovernment tvithout any visible heado 0 uo See ~Autobiography, n Koch and Peden 9 Wri tin~~ 560 1'Iei ther Andretv i,rcLaughlin nor Ivierrill Jensen mentioned their this committee in respective works on the development of the department executive of the government under the Articles of Confederation. Both writers mentioned that the Confederation did provide the atmos phere for the formation of executive departments develop but failed to what seemed to be a real beginning toward Considering an executive. Jefferson~s opinion as found in his 1787~ letter of August 4, to Edward Carrington, the Confederation did any not make use of expediency to solve the problem of the executive also being function itself the executive had to devote precious time conside~ations to executive without regard to their degree of importanceo Jefferson to Carrington., See August 4, 1787, Boyd, Papers, XI, 679. "

. I , ····- - '•· ·-··--~·~·~ ...... ''.: .. ;·

\ -19-

winter of 1785 and 1786, according to the retired Frankl in, only had . ~ 31·· seven or eight· states assembled. ~n Congress. The reality of

gove~rterrent depended not, it seemed, on the Articles of Confederation

as its basis but on eit·her a quorum or the cordial interplay of strong-

minded individuals. \

·."!: Tile movement to give wider powers to Congress gained t00mentum by

1786. The argument for thes·e powers had been based on the experience of

several years of government, and it began to take effect. Congress

needed to have an independent income, to regulate commerce, and to pay

the foreig~ and domestic debt. · There was also the fear that if Congres~

,. ;· were not given a broader base on which to operate, the federal

government would disintegrate. Not only would·the government _I

l disintegrate but the union was in jeopardy. Under this stress, sharp

divisions of opinion had, by 1786, become visible.

The nationalists sought a stronger national government. Their

aim to achieve this was not by reforming the Articles but by forming . t ., t 32 a new government. The federalists, seeing that the nationalists

were gaining strength, began to compromise and be willing to concede the , i desired reforms to improve the states of the central government. Thus

there emerged varying~d,grees of opinion on the nature of the central

.. ' government.

_, ,;· -• The moderate and prevailing view sought to amend the Articles of

Confederation so that Congress would have greater powers in matters of

national and foreign consequence. This movement for the granting of

31 Benjamin Franklin to Jefferson, March 20, 1786, Boyd, Papers, IX, 349. 32 ~· Jensen, New Nation, 417 and 245-47.

.,,, I . j I

:,1 ... :,: • \j '\· I 'I I -20-

added power to Congress began in the Virginia As:sembly. The purpose

·behind the resolution calling for a conunerical convention ·was "to rescu·e

I • • • the Union and the blessings of liberty.staked on it from 33 impending catastrophe.u James Madison promoted the motion. When

Jefferson heard of the possibility of giving Congress added powers, he· 34 became encouraged. The central governm~nt would thus have a firmer

hand on national affairs.

Jefferson specifically defined his c,wn position on the movement I••"~\

toward a stronger central government. He favored giving Congress .added

powers in the areas of having an independent income, regulating commerce,

and paying the debt. He wanted a strong central government in so far as

"to everything external we be one nation only, firmly hooped together~ 35 Internal government ••• each state should keep for itself." He

favored the division between the states and the nation as a whole of the 36 responsibilities of government. He was neither a nationalist, nor

a federalist. As he later stated to Francis Hopkinson, he did not 37 subscribe to either faction, nor was he a trimmer between them.

33 Irving Brant~ James 1'-1adison The Nationalist: 1780-1787, (Indianapolis~ Indo g The Bobbs=rr1errill Company, 1948), 316. Here after cited as Brant~ Nationalisto ::~, 34

~:~ Jefferson to 1'-'iadi son, February 8, 1786, Boyd, Paeers, IX, 264. 35 Jefferson to Madison, February 8, 1786, Ibid., IX, 264. 36 Caleb Perry Patterson, The Constitutional Principles of Thomas Jefferson, (Austin, Texas:· University of Texas Press, 1953), 33. Hereafter cited as Patterson, Constitutional Principles.

Jefferson to Francis Hopkinson, March 13, 1789, Boyd, Papers, XIV, 650.

, .. _ .. -.. -' •;' .... , . . . ' ·~.~-1'.N -~~~~J-.,-' -21-

• •j ~1 Although Jefferson had been aware of the def.ects and chort ~

comings of the Articles of Confederation, he considered that it formed

the best of all possible gov_ernments. The situation of the common

people in France and England thoroughly disgusted him. : The aspect of 38 monarchical government had become absolutely repulsive to him. As

loyal· as he t-1as to a government which was free of coercive ·force and

4 temper, Jefferson was convinced of the need for reform to give solidity 39 to the unity of the United States.

\ ./' 38 Jefferson to Edward Carrington, August 4, 1787, Boy~; Papers, XI, 678; Jefferson to Joseph Jones, August 4, 1787, Ibid., XII, 34; and Jefferson to George Washington, August 14, 1787, Ibido, XII, 36. 39 Schachner, I, p. 241. Schachner quoted from Jefferson's letter to Edmund Ran_dolph, February 15, 1783.

_,_ '"'.I• ......

·.1;.

I l !\ lI I I ~ 1, ~-· ·- •,.' l f. C '

i ·.•· ..1.

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•\• .. ,~ ,,,;

, .. \ "'I, ...

'. II. JEFFERSON'S REACTION TO THE ·ANNAPOLIS ------AND PHILADELPHIA---- CONVENTIONS- -

James Madison had initiated the resolution in the Virginia House

of Burgesses which ,-1ould grant greater powets to Congress in order to

provide for its budgetary needs and to free it from the caprices of the

individual states. The resolution called for a commercial convention

of the states to meet and propose new amendments for the Articles of

Confederation. The end result would place Congress in1 a more

independent role and allow it to concentrate on problems of the union 1 and the nation as a whole.

Jefferson received from Madison the pertinent information on the

principles comprising the resolution of the Assembly and an explana~ion

of the desired effect of the granting to Congress the added powers over

all commerce. In London, John Adams also received similar news from ..

, other sources. There had been previous attempts to revise the Articles

of Confederation which had been proving to be to the nationalists an 2 inefficie~t instrument for a federal gqvernment. The critical state

of the federal government brought its existence into serious question.

1 Madison's motion sought to provide Congress with the regulation of

•-.( . from an impost. The movement for granting ·r, co·mmerce and an income t ' a five percent impost to Congress had failed to get approval of the thirteen states in 1781 and 17830 See Jensen, New Nation, 58 and 404. Also Madison to Jefferson, January 22, 1786, Boyd, Papers,

IX, 198, 203-04 9 and Brant, Nationalist~ 381. 2 Jensen, New l'Jation, 400-07·, and Mclaughlin, Confederation and Confederation, 169-73.

-22-

l· ,I

... '• ,. . - jm.': _ I_I -~u-L..!.{'"' L---c:-' L-L j. r--=- L '.u L-=----.J L- l.• _ • ~1 Ll L--:-L ~ ••• ,.,,·. - • k :,LI!!

• Q

• ,/ -23- Jefferson --had become aware of the inabi 1 i ty of the government to. cope effectively with the matter of internal commerce. He also shared Madison's views on the vices of interstate rivalry and the cormnercial "".'· barriers .which· had been thrown up 3 to frustrate neighboring states. Thus the total situation of the United States presented the requisite evidence to those who advocated a more energetic and stable central government. Jefferson had insisted on being kept informed '-· of anything that could possibly transpire in the amending .o'..-~- of the Articles. While " J ~a ~ Madison • ;: explained the situation (> of the country to Jefferson, he never demonstrated as nruch optimism 11:: as his fellow Virginian who seemed to l·I[ have the assurance that the inexorable process of history would t ,-. ,, vindicate his national hopes an/dreams. For Madison, the commercial convention which was ---=,....-, to meet at Annapolis .· ·t in September, 1786, 4 was the last chance for redemption. The Annapolis Convention had been called for the first Monday of , September, 1786. Nonetheless, the convention did not get under way on its convening date. Instead,,__,_several weeks went by before there was a sufficient number of delegates with which to begin its business. Although only five states were represented by their delegations present at the conv~ntion, four others had appointed commissioners who never 3 Madison to Jefferson, ft.larch 18, 1786, 4 Boyd, Papers, IX, 334. Madison acted as the prophet of doom · however, was for the ~~st part. He, not alone 1~ citing th~ f~~lits imposs'i 9 vices~ and the ble and unreal ft st ic machinery of government provided under the Articles of Confederationo for inter Thus he became the pares of a group of nationalists orimus pointing who collated the ----- up the negative aspects facts Nationalist, of the Confederation0 Brant, 378-89~ and McLaughlin, Confederation Constitution, 144-45 and 173-76. and

-.: ·-···: ... ,,,

-24- . 5 arrived. Realizing such-a small group could not speak for ~h~ entire

country, the convention adopted a resolution recommending to the states

that. a plenipotentiary convention be held in. Philadelphia on the second

\ · Monday o·f~ !'1_~y, 1787. P.nd so, the first step had been taken towar.d a 6 • general ~evision of the Articles of Confederation.

Madison had expected that the Annapolis ~onvention would not in / -itself be a productive convention. As early as March, }786, he had

begun to have doubts about its outcome. Yet it was not the best move 7 that could be made under the existing conditions. The internal

financial problems of Virginia which had been aggravated by the lack of

Firculating specie and a drop in the price of tobacco precluded any 8 ·.. adverse opinion on the forthcoming convention. On August 12, 1786,

Madison's spirits were again lowered by news which he had heard and relayed on to Jefferson. The desire was being expressed by people in and out of Congress to make the Annapolis Convention a preliminary /' meeting to a plenipotentiary convention which would have the power to 9 amend the Articles. Madison was not receptive to this intention /. because he did not feel that the time was propitious for a more drastic

5 Farrand, Constitution, 8. Madison reported to Jefferson that nine states had appointed delegates. f\1adison to Jefferson, August 12, 1786, Boyd, Papers, X, 229. 6 0 Congress also called for a similar convention to take place at the same time for the ''express purpose of revising the articles of confederatione" i~L~ughlin, Confederation and Constitution, 182- ,,,,., . 83. Also see Farrand, Constitution, 11 7 . Madison to Jefferson, fv1arch 18, 1786, Boyd, Papers, IX, 335. 8 Madison to Jefferson, May 12, 1786, Ibid., IX, .519. 9 .l'-1adison to Jefferson, August 12, 1786, _Ibid., .X, 233. -25· 10 revision "beyond a Commercial·Reform."

Jefferson later learned from Louis Guillaume Otto, the Fre~ch charge d 0 affaires and representative of Net-1 Hampshire to the 11 Convention, that the conve·ntion had been poorly attended. Its only accomplishment had been .to send a report to the state legislatures calling for another convention to ·which delegates be given wi~er provisions to consider steps to maintain ·the ha~mony and national stability of 12 the United States_ , Otto, ( in addition.,· had informed his government that he had heard rumors to the effect that the only.purpose for the Annapolis Convention would be to prepare the . I ,.,ay for another meeting. He explained that the report sent to the states had been rushed through the'convention while there were only five states in attendance. The presence 13 ·of the other four would have presented difficulties. While expecting news of the results of the Annapolis Convention, Jefferson wrote his to European correspondents about this assembly of 14 states and what would possibly come from it. However, from Madison came word that the proposed Philadelphia meeting would entail a general 15 "• revision and amending of the Articles. Such a gathering could not 10 Madison to Jefferson, August 12, 1786, Boyd, 11 Papers, X, 233. . Farrand, Constitution, 38. 12 ~- Louis Guillaume Otto to Jefferson, October 15, 1786, Boyd, X, 466. Papers, 13 ·' Farrand, Constitution, 9. 14 Jefferson to William Carmichael, August 22, 1786, Boyd, Papers, 286-87; jefferson X, to C.W,F. Dumas, September 22, 1786, Ibid., X, 397; Jefferson to Lafayette, August 24, 1786, Ibido 9 X, 293; and • •i, Jefferson to Thomas Barclay, August 31, 1786, 15 Ibido, X, 313-14~ Madison to Jefferson, December 4, 1786, Ibid., X, 574-75.

',,. . \. . . ''I -26- be realized unless all the states would send the properly authorized delegates. In the interim.between the"two conventions, the Shays' Rebellion and the more general move1nent for the adoption of paper money had absorbed the\attention of the country,

The Shays' Rebellio1r-·was supp.osed to have acted as a catalyst in the movement for a more energetic form of government. One of the contemporary arguments against the Constitution had been that the ' 16 Constitutional Convention had been influenced by the insurrection. 17 Jefferson also shared this view. Nonetheless he looked at the rebellion as being both right and purposeful. He considered it as an expression of the people against unjust and inconsiderate government 18 and a testimony of the overall happy sta~e of the thirteen states.

Only one rebellion in thirteen states in eleven years, Jefferson 19 considered, was a good record.

A contrasting opinion was held by George Washington. The major sources of his information besides the newspapers were Generals Henry 20 Knox and Benjamin Lincoln. Both officers were natives of

------~------~---16 Uriah Forrest to Jefferson, December 11, 1787, Boyd, Pape~, XII, 416. 17 Jefferson to Wi 11 i am Steph.ens Smith,_· November 13, 1787, Ibid., XII, 356-57. 18 Jefferson to Carrington, January 16, 1787, Ibid., XI, 49, and Jefferson to Madison, January 30, 1787, Ibid.,.... - XI, 92-93. 19· . . Jefferson to David Hartley, July 2, 1787, Ibid.,.XI, 526. 20 George ,..Jashington to Benjamin Lincoln, !"farch 23, 1787, John C. Fitzpatrick, ed., \\frit_ings of 9eorge \,Jas~_lng_~~' (i~ashington, D.C.: United States Government Printing Office; 1939), IXXX, pp. 181-82. Hereafter cited as Fitzpatrick, ~~ashi ngton. l I -

-27- ~1as s a·c ··- hu set ts. They proceeded to give the general their· views of the insur·rect-ion. The impact of their statements about this ··, calamity caused Washington to abandon his retirement at Mount Vernon and to assume a 21 more active role in the political affairs of the -country. Washington feared that the rebellion would spread to other states. He did not consider !vlassachusetts as peing unique, for other states"' contained '.v similar incendiary mate.rials 22 ' out of which to make a rebellion. Washington passed onto Madison !- some of the ideas which, in his opinion, motivated the adherents of th~ insurrection in lviassachusetts. One idea was that since the Revolution had been a common cause and independence .,,,; ,ff gained, then all the property of the country had been won by all people and should be the common property of all the people-• Another .. was the annihilation of all private and public debts. At the center of the insurrection was the issue 23 of paper money as legal tender. ~

Paper money had been given much attention in ea~h of the states ~uring the decade of the eighties. The drainage of specie to pay 24 pre-war and war debts created some financial hardship. The conservative elements· feared the use of paper money and vigorously opposed 21 Jensen, New Nation, 250. 22 Washington to David Humphreys, October 22, 1786, Fitzpatrick, i~ashinaton, IXX..X, 26-28. John Jay made a similar remark rebellion spreading to about the Jefferson in a comment on the insurrection. John Jay to Jefferson, October 23 27, 1786, Boyd~ Papers, X, 488.-89. George.Washington to James !4adison, t-1arch t~ashington, 5, 1787, Fitzpatrick, IX)(X, 50-520 Later r•1adison 9 writing to related to him along Jefferson, with the changes in the ~~ssachusetts government because of the.April elections that there possibility of an issue was a of pap~r money. Madison to Jefferson, April 23, 1787, Boyd, ~apers, XI, .24 307 • Jensen, New Nation, 325-26.

-~ -28- 25 it. The ~pponents of paper money assoc.lated 1 ts use wt th democracy 26 ' J• ·-- of which they wanted no part • In the atmosphere. · of rebellion and the clamor for paper money,

the country prepared for the Philadelphia Convention. The prospect of

the convention aroused polar reactions. There were those who bitterly

opposed it and considered it .an usurpation of duly constituted 27 authority. These people asserted that only Congress could call such

a convention and that only by the provisions ~f the Articles could the ' '

government be revised. So long as such spirits controlled the state

legislatures, several state delegations could not be assembled until

the last minute. However, the dissenters did not hav·e the strength for

a concerted action against the growing national movement to strengthen

'-. the union. They were over-ridden by the popular expectations of

positive gains from such a convention and by the Congress which issued 28 a call for a convention to revise and amend the Articles.

Since Jefferson had gone to France, the sentiment for the

necessary reforms had been growing in the United States. He found that

his own constitutional ideas were beginning to be accepted. Altl!.,ough

- . he had heretofore expressed reservations about government that had been .·· given too many powers and too 11'R.1Ch freedom, he realized the importance .. ;;-- 29 V of reforme He even caught enough of the general enthusiasm for the

25 Jensen, New Nation, 313. ·26 Ibid., 426-27. 27 - . Madison to Jefferson, February 15, 1787, Boyd, Papers, XI, 154; Madison .to Jefferson,-·March 19, 1787, Ibid., XI, 219; and Carrington to Jefferson, April 24, 1787, Ibid., XI, 311. 28 Jensen, New Nation, 421. \

..P. 29 ', ..... Jefferson to Madison, December 16, 1787, Boyd, Papers, X, 603. ,, -29-

coming convention to look forward to it.

'' To Madison, besides expressing his feelings on the separation of

the powers of government, he mentioned reforms along limited lines by

which the powers of the federal government would be properly increased

to handle foreign affairs. At the same time, federal power over

int.ernal state matters would be restricted.· Fearing centralized

' authority as he sa,1 it in Europe, and especially in France, Jefferson

would be satisfied if the United States exhibited only the facade of

unity. Foreign nations would view the united front and be forced to

respect the new nation.

Jefferson hoped a thorough-going reform would produce an executive

~. - - .:Itri)_ branch of the government. He had advocated in the past the separation

,. from Congress of the "Committee of the States" as provided for in

Article IX of the Articles of Confederation. The revision of this

branch of the government would provide for an executive committee to

function during the meeting of the Congress to handle all executive

business so that Congress could concentrate solely on legislative

matters. Under the revision, the "Conunittee of the States" would also

continue' to function as the executive during the adjournment of 30 Cong·ress. Up to this time, ~efferson had not accepted the reality of

th·e fact that this committee failed to function as provided for in the

Articles because of incessant disruptions owing to personality 31 clashes.

30 Jefferson to Madison, December 16, 1786, Boyd, Papers, X, 603 and "Autobiography," Koch and Peden, Writings, 56-57_. · 31 Schachner, I, 225~ t"

'. -~· --1 ,-.,. ·~·.- .. ·.-_: ' ..

•• . .

-30- Jefferson exhibited an optimism about the convention which demonstrated the hope he had for the future of the amended Articles of Confederation. He though in ter~s of those amendments which would make ; ·Congress the sup.reme· functionary of the federal government with independent executive and judiciary branches. Nevertheless, in practice, these branches ~ would be only semi-autonomous departments of :~ Congress .•

The essential spirit of the Articles had to be preserved. Jefferson ;• had not been aware of the change in the consensus of opinion that had ·taken place in the United States since he had left. Jefferson°s stay in.Fi;ance had removed him from the current of thought which had uner gone drastic revision from that of the revolutionary and immediate 32 post .. war days. Although he was still exuding the ardor of liberty and independence, sentiment at home _had been cooling down. Serious 33 ., and practical thinking was reigning instead. Being caught up in the pre-revolutionary trends of France, Jefferson never ceased to think 34 as a rebel.

Not all of Jefferson's correspondents spoke of impending doom. Some did see the importance of telling him of the alteration of the 32 Jefferson to Madison~ January 30, 1787, Boyd, Papers, XI, 92-93; · Carrington to Jefferson, June 9, 1787, Ibid., XI, 408; Jefferson to Carrington~ January 16~ 1787 9 Ibido~ XI~ 48=50; and Jefferson to William Stephens Smith 9 February 2~ 1788~ Ibido XII~ Jefferson°s 9 557=580 For O'WD. admission of being out of touch with the spirit contemporary see Jefferson to David Humphreys, March 18, 1789, 679. Ibid., XIV, 33 Jensen, New Nation, 427. Jensen's thesis demonstrated .; extent to what the Confederation worked to adjust to nationhood and problemso its 34 "Autobiography," Koch and Peden, Writings, 31.

... · -31- ..... climate of opinion which had taken place on account of the economic

problems, the unsettled frontier situation ~1th the British and the

Spanish, the popular movement= the Shays' Rebellion, and also the

-·,, insistence by the debtor class for paper money. For the most part, these

matters involved either treaties or other similar arrangements which,

when ratified by Congress, hound the states.

The inability or the reluctance of the states to live up to their

contractual obligations with Congress did not.greatly concern Jefferson

.: 35 as it did others. Conformity to the decisions of a more powerful

Congress could possbily involve the use of force. This brought up the I,. ,· ·.\ subject of coercion in government, ,~hich would produce the double effect

of compelling obedience as well as inspiring self-confidence among the 36 states and the individual citizens. Jefferson shuddered as he gaged

the extent to which his fello"tr1 Americans were willing to part with their

sovereignty to a central, impersonal government for the mere sake of .I;,.• . \ 37 stability and security. From afar, he did not see the threat to the

repub11·c of the anarchy of popular movements. As for the menace of

monarchical aspirations on the part of some, he felt that those who

wished a king to rule ov~r them, should spend a short time in France.

35 Jefferson did not like force or its use in spite of the ends. But at times he possibly became exasperated and then would justify the

application of ito In 1786 9 when the treasury was almost empty

because the states would not pay their shares to Congress 9 Jefferson stated to Monroe that there would never be any money in the treasury until 1111 the Confederacy shei1s it o s t~iet: h10 °0 It must be remembered also that Jeff er son tvrote tb1i s at a time tvhen he i11as having difficulties t~ith the French over the default of the payment of interest owed them. Jefferson to James Monroe, August 11, 1786, Boyd~ Papers~ }{, 2250 36 Carrington to Jefferson, June 9, 1787, Ibid., XI, 408. 37 Jefferson to Carrington, January 16, 1786, Ibid,, XI, 49.

·, ' ~ ..... , •· -·• '••" 'r', , .. ,,,- ~·, ,, •" .,., '·. ·.•,,,:,•.; ., ' '·~ _.,. _.. .' . •· .-.,. • ,

-32- . " 38 Then they would be permanently cured of that mania. Nevertheless,

Jefferson did not despair of his faith in the triumph of good republican

government over the despotism that might be conjured up by the attempts

of the youthful country to govern itself. ** ** ** ** ** **

The Philadelphia Convention, which was,to have convened on the .. second Monday of May, the fourteenth, did not have a sufficient numbe~

of states registered to organize itself until the twenty-fifth of May.

Getting under way inauspiciously, it proceeded to its business by first

electing General Washington its president. Jefferson continued to' 1 receive word of the Convention as it·continued in session. From both

l~ashington and Madison, he heard of the slow progress made during its

early days.

Knowing that Ivfadison was a dominant figure in the Convention gave

Jefferson much satisfaction. It must be remembered that Jefferson

' chose and purchased many books for Madison and thus subtly guided his

study and research into the constitutions, republics, and confederacies

of the past. Madison's scholarship not only gave him a perspective of

what equipment was necessary for a central government republican in

nature and national in intent, to survive the ravages of political 39 storms but also the authority to speak as a political theorist. In·

this respect, Jefferson made a contribution to the Constitutional 40 Convention.

"". 38 Jefferson to Benjamin Hawkins, August 4, 1787, Boyd, Papers, XII, 682. 39 Farrand, Constitution, 196-97, and Brant, Nationalist, 13. 40 Malone, Rights 2..£. Man, 87. ," i

.. ! I -33-

/· One matter which incurred Jefferson's displeasure and caused him

to chafe was the imposition of sec~ecy on the deliberations of the 41 Convention. To avoid premature and unreasonable criticism before

l' •, their work could be completed, the delegates strictly observed the

~ilence imposed by oath. Madison and the others of the Convention,

who corresponded with Jefferson, followed the rule faithfully.

Humorously but succinctly, ·Francis, Hopkinson, a member of the Convention,

explained the reason for secrecy. "No sooner will the Chicl

rema.ined anxious, hopin·g that his basic ideas dealing with the functions

of government would be given- some recognition. His correspondents did

not help him at all, for those who were of the convention just

intimated as to what they were doing. Madison, who took copious notes,

~romised to give him a complete review of the" deliberations later.

Jefferson might have received some advance information if Madison

would have had his cypher book with him.to encode his September letter.

Still Jefferson, like everyone else outside the Convention, received no 43 valuable information. He considered the secrecy rule an abominable

precedent and the denying the value of public discussions as sheer 44 ~ ignorance.

Although Edward Carrington was not a member of the# Convention, he

provided Jefferson with more information on the Convention than did

Jefferson ~t,o Adams 9 August 30? 1787, Boyd, Papers, XII, 69. 42 Francis Hopkinson to Jefferson, July 8, 1787, Ibid., XI, 561. 43 Madison to Jefferson, September 6, 1787, Ibido, XII, 102.

44 ·:,.·

•• 0 Jefferson to Adams, August 30, 1787, A-J Letters, I, ·196.

I •

. I ,i

., -34-

anyone else •. Carrington had been a neighbor of Jefferson. He gave

his impressions without reservation or fear that Jefferson would mis

understand them and take undue exceptions with his opinions. Although

the rule of secrecy precluded the· dissemination of information from the

convention, the nature of the delegations and the personal opinions of

the convention members revealed the prevailing attitudes. Carrington deduced that there "_::.=r were two possible alternatives for action. Firstly,

the entire country might be consolidated. The states would then be 11 II come merely subordinated courts for the administration of laws. The f

second alternative ,11as that the federal government would be invested

with complete authority in commerce, revenues, matters of federal

organization 6f the states; rights of peace of war, and the power to 45 negate any state legislation.

Carrington added that the second ch9ice would be more practical • than the .first. The former would be out of the question because of

the diverse nature of the country. Each section had peculiar problems

that could be dealt with only on a local basis. The other reason for

its rejection was its tendency to facilitate despotic rule._/)

Carrington was sure that the final result of the Convention would be TT!UCh in line with the second point. ~ When Jefferson read this letter, " /. he realized with apprehension that the Convention was not just drawing·

- up a few amendments to be appended to the Articles of Confederation 46 but a completely new instrument of government. Carrington was

certain that th·e federal govern1nent would have complete sovereignty over 45 '~ , Carrington to Jefferson.. , June 9, 1787; Boyd, ~aEe~, XI, 410. 46 Jefferson to Carrington, .August 4, 1787, Ibid., XI, 678.

,,. -35- the .~ state governments. He inserted the note that this would be good if

such a gove,rnment could be so constructed under a constituti-on and also

if the executive power could be so defined so that it would not be 47 oppressive.

Thus Jefferson recognized the intent of the Convention which aimed .. at a thorough reform of the Articles. Some of the ~tates had given, in ti J I efiect, their delegates commissions without restrictions and limitations 48 which allowed ~hem to promulgate such reforms. As Carrington had

reporied to Jefferson, the states which restricted their delegations

lifted any imposed limitations and allowed them free sway at the 49 Convention. Jefferson confessed to Carrington that he did not think

- that such a complete reform was necessary ·and would not have gone so far. · Convinc,ed that the present farm of government was the best of all

possible government, he stated that the Articles only needed to have

[,1 0 Carrington to Jefferson, June 9, 1787, Boyd, Papers, XI, 410. 48 Carrington to Jefferson, t June 9, 1787, Ibid., XI, 407. I ( 49 Carrington to Jefferson, June 9, 1787, Ibido, XI 1 407. According to Max Farrand~ the Delaware commission created some consternation because of its restriction prohibiting its delegates from 11 ichanging the principle of the confederation of each state having an equal voteoQQ Farrand~ Constitution'£) 560 fvJerrill Jensen)) on the other hand, hinted at a possible COt!E, d 0 etat when he averred that the members of the Convention e~aecided to ignore their instICuctions and to create an entirely ne1~1 governmento oe Jensen5) NevJ Nation~ 421. Carrington~ as a contempot"ary obse:rver 9 ei!pressed the accepted position that states were requested to change the instructions and free their delegates "to render the Constitution of the Foederal Goverrunent adequate to the eJ,igencies of the Uniono n Disproving Jensen°s opinion 9 Far&and mentioned that the reason for the withdrawal of the New York delegation, except for Alexander Hamiltonsi ,-O'as ti1at the delegates~ Yates and Lansing 9 believed ·that the Convention had progressed to a point where they considered tqat further participation on their part, would be to exceed their instructions. Farrand, Constitution, 105 •

.. ,.. -.... -36- 50 its defects repaired.

Even though Jefferson knew what Carrington thought was the

Convention's intent, he stoically held on to his own ideas in his letter to Francis del Verma, an Itali~ nobleman of Milan, who was interested in the United States. He told him of the Convention and the forthcoming amendments to the Articles. Af~er having received

Carrington' s letter of June 9, and having sent him an answer on August

4, he wrote to del Verme on the fifteenth of August that the.Convention at Philadelphia was considering investing Congress with exclusive authority in foreign affairs. The states would remain soyereign in domestic matters. A peaceful means would be devised for Congress to

.. , .. enforce its decisions on the states. In addition, the powers delegated to Congress under the Articles would be divided into their respective 51 departments: executive, legislative, and judicial. Apparently,

Jefferson would not accept completely Carrington's observations and op1n1ons.• •

Only when Jefferson read the final result of the Convention did he see the correctness of Carrington's position. Being so convinced of ~- the nobility and the sterling properties of the Articles of

Confederation, he could not visualize the necessity of doing away with~ 52 it.

50 Jefferson to Carrington, August 4, 1787, Boyd, Papers, XI, 678-79. 51 Jefferson to Francis del Verme,\August 15, 1787, Ibid., XII, 42-43. 52 Jefferson to Adams, November 13, 1787, Ibid., XII, 351. /, ·\ / --,,,,., 'fi

·\. ,: ... ·· J

III. JEFFERSON'S REACTION TO THE ------CONSTITUTION------·-- :-o,:

The Constitutional Convention completed its deliberations on

September 17, 1787. The delegates present unanimously approved the

document, and the Constitution was submitted to the country for

ratification. The new plan of government was widely disseminated in

printed form and appeared in many journals and newspapers. Jefferson

had not been forgotten because he had begun to zeceive copies shortly 1 afterwards. In actuality, he was favored with many copies. It

seemed as though· each of his friends felt that he might have been forgotten.

Jefferson gave the Constitution a hurried perusal and formed

opinions which were changed, in part, within the year through I 2 "reflection and discussion." He approved of the new instrument as a

·whole, but like many other Americans he questioned the inclusion of

certain articles and lamented the exclusion of others. His European

experience and 9bservation of society under despotic regimes made him

.. acutely conscious of the ~ffect of a government which understood no

<::' bounds with respect to the citizen and his rights. He strongly felt

that there had to be safeguards in the Constitution to maintain the

\ I 1 "'-h. '\ Jefferson to William Stephens Smith, November 13, 1787, Boyd, Paper,!_, XII, 356Q 2 Jefferson to Francis Hopkinson, March 13, 1789, Ibid., XIV, 650-51, and Jefferson to Carrington,· May 27, 1788, Ibid., XIII, 208. -37-

·, . I \__ -38- I --·-·-,· democratic features of the American experiment. For this reason he

had to reserve his complete approval until that time when the proper

alterations would provide the basis of a truly democratic order of

government.

In the meantime, Jefferson engaged in lively discussions in

which he aired his views and examined those of others. Of -significance

were the dialogues between himself and the other men who were also to

become presidents of the United States. The leading figure of this \ l '(

I • . I group was James Madison whose political thought inspiringly challenged ·, Jefferson and brought out much of his reaction to the Constitution. It

must be remembered, however, that the issues which would eventually

lead to the formation of Jefferson's Republican Party had not yet

come upon the scene. Jefferson's influence can only be understood in

terms of the budding friendship that existed at the time. Although

each man respected the opinions of the other, unanimity in political

matters was not prerequisite to friendship. They exercised moderation ·1 I in the voicing of their views to avoid incurring the displeasure of

each other. I This respect could possibly explain Madison's reticence con- ·••v i.. cernlng his participation in The Federalist. He had not mentioned

anything to Jefferson about these essays. However, Edward Carrington

had sent Jefferson the first volume and promised the second as soon as

it was available. He also intimated that the authors were Madison,

John Jay, and Alexander Hamilton. When the second volume was ready,

·,' :·

""\··,:

' ,.,., •'" '\

/ . '\

,, -39- 3 ...... r Carrington asked Madison to include it in his mail to Jefferson. Thus

\, Madison was ·forced to tell Jefferson of his role in The Federalist. In

addition, he mentioned that he did not completely agree with the

opinions of the other two, and neither did he have the opport~nity to 4 preview their articles before they went to press.

... Jefferson°s discussion with John Adams was prematurely cut off •

Apparently, the Constitution was a matter which caused Adams' temper to

flare rather easily; and it became a sensitive spot. Only two letters

were exchanged before Jefferson ~ealized that tact urged the dropping - of the subject. 7his exchange was unlike that with Madison in which·-

independent views were espoused, and the impact of their ideas brought

the two men closer together helping them to define their positions more

clearly.

Jefferson continued to discuss the Constitution with Colonel

William Stephens Smith, Adams' son-in-law. In no way, however, can

this series of letters on the Cons ti tut ion replace that t'1hich would ' i,! '· have resulted with Adams. Colonel Smith held opinions which were not

necessarily those of his father-in-law. Nonetheless, it can be

intimated that Adams learned the content of Smith's correspondence ;. with Jefferson; and possibly some of Smith's thoughts may have I ) ,. ' originated with, or at least been influenced by, Adams.

·;; 3 157. Carrington to Jefferson~ May 14 9 1788, Boyd, Papers, XIII, Carrington°s and Madison°s letters implement each othe~o Carrington would write when Madison was unabl~ to do so~ or one Bould omit information because the ~ther ~ould be ~@porting on the event or circumstance from first=hand observations in a subsequent letter. On thi~ occasio~, Carrington acted without Madison°s knowledge and possibly surprised him when he asked him to send along the second volume to Jefferson. 4 I Madison to Jefferson, August 11, 1788, Ibid., XIII, 498-99.

~·-- ~.~, ... ., ... ,'\- ...... J -J, ::' q_J ,•.:1·~-- -~

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The youngest person . of this group was James Monroe. One would think that because of his age he would have been influenced by Jefferson. This was not the case, considering Monroe 0 s stand at the ratifying convention of Virginia in July, 1788. · He sided with the / ·/ Patrick Henry and George ' Mason faction which was opposed to the Constitution. There was little discussion, and Jefferson mainly clarified his position with Monroe. Jefferson's correspondence with Washington was quite formal. He admired and respected Washington '\ because of his wisdom, integrity, and capacity for leadership. He guarded the statement of his views in his letters to the older man. Since he was aware of the conservative politics of ~he general, he did not want to upset him. From his Parisian post, Jefferson expressed a deep concern for affairs in Virginia. He had devoted much time to the codification of Virginia's legal structure and had fought to indtroduce measures which would have liberalized and democratized his state. He did not want to see her either led out of the union by unscrupulous politicians such as Patrick Henry or completely lose her peculiar identity in a 5 thorough-going unionization. In another sense, being loyal to the union, be encouraged Virginia's ratification of the Constitution of 1787. While corresponding with Adams, Madison, Monroe, and ' " Washington, Jefferson C also wrote'to lesser figures such as Edward Carrington, General Greene• s quartermaster of the s~uthern campaign; .,, _t .~. ... .,. . Uriah Forre$t, a member of the ratifying convention; and Alexander . . Donald, the Richmond tobacco merchant who allowed Patrick Henry the 5 Je.fferson to.Thomas Lee Shippen, July-13, 359. 1788,· Boyd, Papers, XIII,

.) ---llllllillilll ______...;,,·-·;..,;.;···-,_···-·-~-·_..,.,... iliiilii--~- ~--~---ec;,c.=,--··,,-.I _J~~l-·....: ~...... 111111!1 ...... ------~------~~~~~---~~ '· .

-41- 6 use of one of Jefferson's letters. Jefferson established his position

on the Constitution for the benefit of these Virginians. •.. cJ

/<'·' · From the introduction of the .. Constitution until the new g·overnment

had been inaugurated, Jeff e.rson seemed more interested in getting the

new order established rather than carrying on lengthly theoretical

... discussions. As a practical politician, he considered the immediate

· situation to be of greater importance than the abstractions of the law.

(. In the light of this,_ the correspondence with non-Virginia~s such as

Benjamin.Franklin, Francis Hopkinson, David Humphreys, Dr. Richard

Price, St. John de Crevecoeur, and the Comte de Moustler was mainly ....,,._ discussion of the immediate issues or of the process and progre~s of

ratification. He communicated with these people ·either to answer

specific qu~stions, toqclear up misconceptions, or to elucidate his

views on the Constitution of 1787. ** ** ** ** ** **

In early November, Jefferson~-re..ceived his first copy of the \'\ Constitution. It came from William Stephens Smith. Adams had received ./ I copies from the dissenting member of the Massachusetts delegation of 7 the Constitutional Convention, Elbridge Gerry. · Since Adams knew

that Jefferson could not possibly have received a copy, he had Smith ,.i - enclose one in his letter to Jefferson. Other copies soon followed

from Washington, Franklin, Francis Hopkinson, and others.

\ Jefferson did not react favorably to the Constitution when he

first saw ito It would take some time for him to come to terms'Vith

6 Madison to Jefferson, July 24, 17_88, Boyd, Papers, XIII, 412. 7 Adams to Jefferson, November 10, 1787, Ibid., XII, .. 335. ·,

..,... !"· .

-42-

it. By May, 1788, he was well on the way toward -acceptlftg it. In

writing to Carrington, he stated that at first he disliked parts of it

even though he did see nuch good in it. "Reflection and discussion

have cleared off most of these.'' He admitted that lt became more and 8 more acceptable to him as it gained favor with the people. This

movement, from alroost complete rejection to almost complete acceptance, was evident in his correspondence. . - After a hurried perusal of the new instrument of government,

Jefferson dashed off a letter to Adams. He asked Adams how he liked

the new Constitution. Jefferson himself admitted being staggered by

it. The Americans had changed since he had left the country. He could

not envision how they could conceive of an executive department" which,

to him, at the moment, was the main stumbling-block. He was not ready

for such~ change. He was still loyal to the Articles of Confederation.

Endowing the Articles with the sanctity of a holy ikon, he considered

that three or fou.r new amendments to the Articles would have been the 9 better choice than a complete new constitution.

One month after writing to Adams, Jefferson wrote to his counter

part i.n Madrid, William Carmichael. He mentioned the fact that the

newspapers in America were not reacting favorably to the Constitution.

They were objecting to the nature of the general government which

,vi ,. would operate on the people without the counterbalance of a bill of

rights on its power. In addition, they could not accept the nature of

10 r the executive department·. Possibly Jefferson read only the

8 Jefferson to Carri~gton, l'-1ay 27, 1788, Boyd, Papers, XII·~, 208.• 9 Jefferson to Adams, November 13, 1787, Ibid., d XII, 350-51. _10 Jefferson to William Carmichael, December 15, 1787, Ibid., XII, 425.

.. .. 11i--··------.....,

:o . : '1 I. - ,- . ---1. I ---, : :J ,.,

-43~

newspapers that at the moment agreed with his objections.

·Five days later, Jefferson corresponded with Madison. For the

first time, he spoke of accepting the Constitution. He either had come

to terms with it or all of a sudden realized its good features. He

reasoned that if the majority of the people ratified it, he would 11 cheerfully concur with them. This act of the people to Jefferson ( meant that t~ey saw what was good in the Constitution. He was confident t""

that the people knew what was right and good. His only reservation was

that he hoped that the Constitution would be amended whenever. it did f ,/ not operate effectively.I

On the following day, December 21, 1787, Jefferson expressed his

position differentl.y to Carrington. He considered himself "nearly a ~-- 12 Neutral.n The objections had become "a bitter pill, or two." By

the beginning of February of the following year Jefferson wanted to see

the Constitution become the law of the land. He still maintained his

reservations about it. Foremost of these objections by this time had

become the lack of a declaration of rights. Jefferson labeled the

absence of this as glaring. In spite of it, he desired that the 13 Constitution be ratified because of the good it contained. In

addition, he was happy that the current of opinion was turning in

.. ' favor of the Constitution; and he was certain that it would be 1 accepted

by the people. I On that same day, February 2, 1788, Jefferson also wrote I to ! I 11 • ·• .•-·--u'':"'""'•!•"'"' !''-<"•••• ·.,~,.. "' "'""'''" •• "' I Jefferson t·o Madisonj December 20, 1787, Boyd, Papers, ~II, 442. I J 12 ·1 Jefferson to Carrington, December 21, 1787, Ibid., XII, 446. i 13 Jefferson to John Rutledge,.Jr., F~bruary 2, 1788, Ibid., XII, 557.

•,:---1 .,.. ,

-..... ,.-,." . · -44-

William Stephens Smith. He reiterated, in substance, what he had

written to John Rutledge, Jr. but included an additional thought. If

he were in America, Jefferson stated, he would urge the acceptance of

the Consti~ution until nine states had ratified it. Then he would urge

- the remaining four to withhold ratification until a declaration of rights 14 would be added. \~hen he wrote to ftladison on the_ sixth of February,

he completed his nine-four formula. He added that this means of

ratification would act as a means of completing the instrument, its

good features would not be lost, and "it's [sic] principal defects"

cured. He also expressed his joy that the Constitution was being 15 "received with favor." On the following day, Jefferson sent a 16 a letter to Alexander Donald, his Richmond merchant. He outlined his formula for ratification. It was this letter which Patrick Henry used to try to have the Virginia Convention rescind its action of ratification.

Jefferson wrote few letters during March and April of 1788. He was away from Paris. For the most of March he was in Amsterdam with

John Adams arranging for a new loan for the United States. On ~~rch

30, he began his trip up the Rhine and did not return to Paris until

April 23.

On May 2, he sent to General Washington a letter which was long over-due. Washington had previously corresponded with Jefferson on the

14 Jefferson to William S. Smith, ·February 2, 1788, Boyd, Papers.a XII, 558. 15 Jefferson to Madison, February 6, 1788, Ibid.,.XII, 569-70.

16 . Jefferson to Alexander Donald, February 7, 1788, Ibid., XII, 571.

" -45- ,) .

matter of finding European capital to finance an internal waterway ..

system in the United States. Jefferson had not been successful in

encouraging anyone to venture into the project. However, he took the

opportunity to report to Washington on the European situation tvhich at ' the moment seemed like a seet.hing caldroon ready to surge up into a

full-scale European war. At the end of the letter, he expressed his·'

opinion on the Constitution. He held only two objections to the new

instrument of government. On the positive side, he maintained that there

was "a great deal of good in it" according to his ideas. lie also

(• ~· stated that he had -come "to look forward to the general adoption 17 • • • with anxiety." Jefferson had, by this time, abandoned his nine-four formula for ratification because.the present condition~of

the United States as he understood it, demanded immediate adoption of

the Constitution. h _,. 'j ·

- The explanation for the abandonment of this principle. can be •' explained by the portion_of this letter in which he reported on his

meetings with the Dutch bankers. The stay in HollanQ was very

sobering for Jefferson. In the process of negotiating a new loan ' just to pay the interest on the American debt held by the Dutch,

Jefferson became even more aware of the intricacies involved in

determining the degrees of credit which were assigned to a government.

England, he learned, was at the top of the list because she levied

taxes to take care of the interest. The United States was at the

bottom. The United States, however, had been given the highest rating

· for the repayment o.f the principal. Still she had to be g-iven the lowest

degree for the paying of interest because the Confederation had no means 17 Jefferson to Washington, r-1ay 2, 1788, Boyd, Papers, XIII, 128.

.(..

. . ·-,:_ ;_,,,:. ' ., • ·::. :,'4 .. /·.,:., •. -.:;,i,,...,_· .. ,;·•.. :.·. -46-

at its disposal for the levying of special taxes. ·"

The Dutch bankers who were about to consider the Confederation

. bankrupt, were looking forward to the prospect of a new government for 18 the United States "with a great degree of partiality and even anxiety."

Thus Jefferson became anxious for the adoption of the Constitution.

The Constitution would be the means of getting a high credit standing.

Jefferson desired that the United State~have the highest credit

rating because it would be another means of buttressing I national

independence. In his opinion, a tveaker nation with better credit than t

the United States could by aggression made possible by its ability to 19 get the necessary funds, end American independence. g Jefferson had on prior occasions made more of his ;.• · objections to the Constitution than his reason for its adoption. When he spoke of

the good in the plan of government, he did not specify it. In writing

to the Comte de Moustier on May 17, 1788, he became a trifle more

specific. He stated ·that the new Constitution would consolidate the

government, provide for a just.representation, make.possible "an

administration of some permanence," and give other valuable fe!tures

which he did not enumerate. Jefferson had come along the way of

accepting the Constitution slowly and surely. He stated to Moustier

that "we must be contented to travel on towards perfection, step by

18 On May 22~ 1788~ the bankers~ Nicholas and Jacob Van Staphorst sent Jefferson a letter in which they affirmed their stando They ' ·." wanted Jefferson to keep them informed of any progress toward adopt_ion of the nei-J Constf.tutiono In addition.~ they themselves counted o~ the ou$lctual threatening Situation of European. politics" which would act as a means of getting the ~eluctant states to accede to the Constitutiono Nicholas and Jacob Van Staphorst to Jefferson, May 22? 1788~ Boyd, P~pers., XIII~ 186. 19 Jefferson to Washington, May 2, 1788, Ibid., XIII, 126-28.

·>

\•• . ,l ( 'h,

;

-47-

step." A perfect government could not be ordered into being immediately, 20 Jefferson wrote, but fashioned out of the necessity of the situation,·

Later that same month, Jefferson wrote to Carrington that it was

by "reflection and discussion" that he had overcome most of .his 21 objections to the Constitutiono Jefferson explained to William

Carmichael his changing reaction to the Constitution. He was pleased ...... ·I

I with many of its parts when he.had first seen it, but he "thought that 22 " he saw in it many faults, great and small." Reading and reflection

were instrumental in overcoming several of his objections which he had

formed at first. He held to only two major objections and overlooked

or ignored the remaining ones. In this letter, Jefferson again

demonstrated complete abandonment of his nine-four formula. Now he

.considered the Massachusetts plan for ratification the best procedure- 23 ratify now and press for amendments later.

Jefferson was becoming anxious to hear that nine states had

accepted so that the new government could be launched. During July,

Jefferson was hopefully awaiting the packet from the United States with

the news~~ the ratification of the new Constitution. Specifically, he

wanted to hear of Virginia's and South :I; Carolina's accessions. The

Massachusetts method of ratification had become "the glorious example."

The ease of obtaining amendments under the new Constitution would be a

means of reconciling all factions in the country. Jefferson, in

20 Jefferson to Le Comte de Moustier, May 17, 1788, Boyd, Papers, XIII, I' } 174. 21 Jefferson to Carrington, May 27, 1788, Ibid., XIII, 208. 22 Jefferson to Carmichael, ·June 3, 1788, Ibid., XIII, 232. 23' Jefferson to Carmichael, June 3, 1788; Ibid., XIII, 232.

,i. . . I

''-'·" ,,; ' ------c-- --

., ,·

writing to John Brown Cutting, expressed practically the same idea as

he had to William Carmichael. Th~ Constitution itself was an easier

means of bringing about the necessary changes in the government than the 24 Confederation which necessitated unanimity on every reform.

On July 31, 1788, Jeff er son wrote to t·1adi son. He expressed his_

sincere joy that the Constitution had been accepted by the people. He

had heard that Virginia had raitified it and thought that it was the

ninth states. Actually New Hampshire, meeting at the same time as

Virginia, had become the ninth state to ratify.

By this time, Jefferson had come to consider the Constitution as

· though it were a work of art. He said that it was "a good Canvas (sic], > 25 on which some strokes only want retouching." ·.r·:: The success of ratification, although sincerely wished by

Jefferson, still bewildered him. He mentioned this t-ihen he wrote to

Dr. Richard-Price, the English clergyman and philosopher. He did not

believe that a form of government which wou\d consolidate the thirteen

states as much as the Constitution would, could possibly succeed. He

-accounted for this acceptance by the change in the climate of opinion

whichrhad occurred since he had been absent from the country. He called 26 this shift "a change in their (the people's) dispositions."

Jefferson made the er.owning and final statement that he couJd _. I

24 Jefferson to Carmichael, June 3, 1788, Boyd, Papers, XIII, 232, and Jefferson 1 to John Broivn Cutting, July 8, 1788, Ibid., XIII, 315. 25 --- Jefferson to Ivladison, (\July 31. 1788, Ibid., XIII, 442. 26 Jefferson to Dr. Richard ·Price, January 8, 1789, Ibid., XIV, 420 •. Concluding the letter to David Humphreys, Jefferson spoke of only knowing Hthe Americans of the year 1784." Jefferson to Humphreys, March 18, 1789, Ibido, XIV, 679. ) (

~ .-.·- ,,,,.;,J..?"···.

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• _2 ':, ·-··· ·'-. I

-49-

I I make about the Constitution of 1787 in his letter to David Humphreys. • I

The government had been inaugurated on Ivlarch 4, 1789. He wrote to

Humphreys on March 18. He stated that "the Constitution • • • was 27 unquestionably the wisest ever yet presented to men."

The Constitution was the result, Jefferson stated to Humphreys, of

the deliberations and of the good sense of the people" intervening into

the affairs of state and bringing order after things had gone wrong.

Jefferson, by ascribing the Constitution to the good sense of the people,

considered it a proof of the ability of the people to govern them

selves. Also thinking of the people interposing ·their corrective

measures into public affairs to bring order out of the confusion that \ entered into government brought Jefferson finally to admit that the 28 Confederation could not straightn out its own affairs.

Jefferson admired and valued the example which the United States

gave to the world. When there was the need for reform, the people

assembled the wisest men and allowed them to deliberate and recommend 29 reforms. There was not a bloody revolt or a civil war or even a

Reign of Terror but instead a convention- a Constitutional Convention.

27 Jefferson to Humphreys, r1arch 18, 1789, Boyd, Papers, XIV, 679. 28 Jefferson to Francis Hopkinson, December 21, 1788, Ibid., 370 and also Jefferson to Thomas Lee Shippen, June 19, 1788, Ibid., XIII, 277. 29 Jeffers·on to Humphreys, March 18, 1789, Ibid., XIV, 678.

r·,.

I ' I .i

~ IV. JEFFERSON AND THE TRIPARTITE FORM -OF GOVERNMENT ---OF THE CONSTITUTION

The problem of the nature of_ the central government drew the

interest of differnet groups during the period of the Confederation.

In.fact, it produced two factions t~ich for all practical purposes 1 took on the semblance of political parties. These groups were the

"nationalists" and the "federalists." The nationalists emphasized the

importance of the central government and its prerogatives, and the

federalists sought to retain the supremacy of the state g~vernment at

the expense of the federal government. Jefferson did not, he admitted, 2 consider himself to be of either faction. He saw each side in its

perspective and gravitated from one to the other depending on the 3 issue. He did not feel that onesidedness could serve the best

interests of the nation as a whole.

.' t Jefferson wanted to see his.political outlook become the guiding r ., principle for the revision of the government. This idea would bring

into being a central government which ,~ould give foreign nations the

assurance that(, it could carry out its side, of any agreement. The states 4 sti 11 retain complete sove'reignty in their internal affairs.

Jensen~ New Nation 9 43=46, 344-45, and 399-400. 2 ~~fferson to Hopkinson, December ~1, 1788, Boyd, Papers, XIV, 324.

.. Patterson, Constitutional Princieles, 32-34 • 4 Jefferson to l\Iadison, February 8, 1787, Boyd, Paeers, IX, 264-67 and Jefferson to George Wythe, September 16, 1787, Ibid., XII, 127.

-50-

,I.._.•,, ~---~-·-··· ' I -51-

Jefferson had come to consider the Confederation as the manager·

of the union's foreign affairs and not the final authority for internal. 5 matters. In this respect, the Confederation could deal in the

administration of internal affairs only after it had been given the • power to do so by the unanimous consent of the states or by the provisions·

.,. of a treaty. Jefferson equated a treaty with an amendment to the 6 Articles. He considered a treaty as having the force of supreme law.

Thus .the granting to Congress the jurisdiction over commerce and the

means for an independent income would not destroy the democratic nature

of the Articles but would give it a greater effectiveness.

Jefferson did not understnad or see the need for giving the

central government more powers than were necessary for its main work-w 7 foreign a.ffairs. When he finally heard of the possibility of the

formation of a new instrument of governm~nt to supercede the Articles

of Confederation, he became preoccupied with the nature of the govern

·ment that would result from the ne\v Constitution. I ' Jefferson had studied the political tracts of his era and was well

acquainted with 1'·1ontesquieu, who tvas the proponent of the separation of

the powers of government. The framers of the Articles of Confederation

made Congress both the executive and the legislative branches of the

government. Although Jefferson subscribed to a tripartite form of

government in his "Draft Constitution of 1783," he did not, in practice, 8 provide for the complete separation of the branches. He made the

5 Patterson, Constitutional Erin~iples, 77. 6 Ibid., 76-77.• 7 Ibid., 3J. ., -J· 8 - "Draft of a Constitution for Vi:rginia," Padover, Comele~e Jefferson, 111.

~ ' .. ------· ~ ~'."?~~w.,~_...,, ... _,_, ..,·.'~-:- . ,____.·.:·~;.·.. ,/ - "· ' ! -52- executive branch dependent on and under 9 the direction of the legislative branch. Actually, the executive, surrounded " by the Council of State, which was appointed by the legislature to advise him, had all powers of that.office delegated to him. Thus having his position so defined "' as the executor of the laws of the state, precluded any opportunity to act independently of the legislature. The experience under the British crown had made a deep impression on Jefferson which explained his reluctance to put into his constitution ' provisions for a truly independent executive branch. To be absolutely clear of his intention to exclude the implication of powers of office beyond those' specified, he stated that "by executive powers, we mean no reference to those powers exercised under our former government 10 by the crown as its prerogative." Jeff-erson .., shared with his con tempo- raries during the period of the Confederation the distrust 11 of unrestricted executive powers. The question of the character of the executive was more of an issue with Jefferson than it was with the Constitutional Convention. From his point of view, he would not have readily assented to a single executive ' but rather would have sided with those few in the Convention who wanted an executive connnittee such as . > 12 that provided for in the·---, Virginia Plan. Considering the executive committee to be superior to a single individual, he held that should the "· Convention fail to 9 Padover, Complete Jefferson, ., 10 114-16. Ibido, 114. 11 Jensen, New Nation, 360-61, and 12 Farrand, Constitution, 77. I.bid., 77.

( -53- extend its reforms to include the separation of the powers of govern ment within the Confederation and provide for an executiv~ head, then

Congress should take it upon itself to commission an executive committee.

This committee would function while Congress was in session and handle the executive trivia in order to free Congress to do its legislative 1.3 tasks. In this matter, Jefferson was not trying to urge the acceptance of a theoretical position, which he accepted as reasonable, as much as he was convinced that the separation of powers of government promoted greater efficiency in the handling of governmental business.

When Jefferson finally did have the opportunity to evaluate the result of the Constitutional Convention, he took exception with the character of the executive. He called it "a bad edition of a Polish 14 king. 0 The fact that the president could be re-elected term after term with no restriction on the number of terms gave Jefferson the , impression that within a few generations, the United States would have an executive who was elected for life. With no constitutional barrier to this possible development, in time it would even be difficurt to turn the incumbent out of office. \~ith the military at his disposal, it would be impossible. Jefferson also feared foreign intervention.

Already suspicious of the British whom he considered to be dedicated to the destruction of the American republic, the situation of an elected executive who could have his terms extended for life would invite all

of dissension and corruption such as entered the pernicious elements .~

13 Jefferson to Carrington, August 4, 1787, Boyd, Papers, XI, 679. 14 Jefferson to Adams, November 13, 1787, Ibid., XII, 351.

'I),:

.~ ,', ..,..

-54- 15 into Polish and, in part, Dutch politics.

,. Jefferson stated in his letter of November 13, 1787 to Willi~ s. ' (

' Smith that after some thought he equated the president wi~h the

Stadtholder of Holland. A civil war had been brewing in Holland which

almost precipitated a general European war. The stadtholder had been \. driven ou\ by the Patriotic P"arty and had been reinstated in his

hereditary'office by the intervention of Prussia. Jefferson used this - contemporary example to illustrate the disadvantages of a life tenure which would make that office unconscious of the needs of the people and ·~. would make use of foreign intervention to maintain itself in power 16 against the wishes of the people.

Jefferson did not favor the system of multiple terms of office.

In his "Draft Constitution of 1783," he. gave the executive officer a 17 term of five years 't-lith a specific r·estriction on a second term. He

would have wanted also the Constitution of 1787 to have provided for"a

council "to aid or check" the executive and to have made him ineligible 18 for a second t~rrn. On the other hand, the Cons ti tut'ional Convention

15 Jefferson to v1i lliam S. Smith, November 13, 1787, Boyd~ Paper~, XII, 3560 Jefferson was acquainted with Polish politics. See Jefferson

to i~adame de Corny si October 18, 1787 s, Ibido ~ )(!Is, 247 Q The topic of Poland was of current discussiono The first partition of Poland

had taken place in 1772 9 and there t·Jas the struggle for constitu tional reforms going on in Poland to remove the elements of the cons ti tut ion v1hich could make possible anotl1ex national l1umi liation. Robert Nisbet BainS) Roman Dyboski ~ and annonymous, "Poland, n Encyclopaedia Britannica, 14th. ed.; XVIII, p. 140. 16 Jefferson to William S. ~Smith, November 13, 1787, Boyd, Paeers, XII, 356. 17 ,t i ttDraft of a Constitution for Virginia," Padover, Complete Jefferson, 114. 18 1 Jefferson to Adams, November 13, 1787, Boyd, Papers, XII, 351 •

• r.,

-55- had decided in favor of a truly inde~endent executive who would not l 19 have been the creature of or dependen~ on the legislature. If he

. , ' ' would have been elected by the legislature., then the Convention would \ have thought it reasonable to make him ineligible because of the

possibility of corruption which would have entered into the legislature

0 in the striving for that ·office. The Convention thought positively in

terms of re-election to act as an incentive to the faithful discharge 20 of the duties of the office.

Jefferson, on the other hand, was suspicious of the motives of men 21 and unchecked executive powere His awareness of the elected office

in Poland .and its history gave him sufficient reason for opposing the '1 ' . '. • bringing a similar situation into being in the United States. This

aspect of the elected office, according to Farrand, did not even enter 22 into the deliberations of the Convention.

Another matter involved in the character of the executive as

1 outlined in the Constitution of 1787. that bothered Jefferson was elections. He did not want to deprive the people of their right to

. choose the officers of their government. On the contrary, he feared

that the people would be carried away by their passions and would not 23 use their reason. John Adams agreed with Jefferson that elections "'' were dangerous. Because of the amibitions of officer seekers,

19 Farrand, Constitution, 78-79. 20 Ibid., 77. 21 1· "Draft of a Constitution for Virginia, .. Padover, Complete Jefferson, 114. 22 Farrand, Constitution, 171 23 "Autobiography," Koch and Peden,. Writ:ings, 82.

' \ , . . ·,~...... -,-...... ~-·--· ..... ·- ---"""""""'------...

,' ! -56- elections k- terrified Adams. Thus he maintained that they should be 24 dreaded • WilliAm S. Smith took exception with both his father-in- . J law and Jefferson. His view was that such elections would be orderly

affairs carried on in different polling places and by secret ballot. 25 They would be very unlike Polish elections. The Poles elected their

kings by gathering on the plain outside of Warssw and ballotted by shouting.

Nonetheless Jefferson's foremost fear was the implication of no

restrictions on the number of terms one individual could have as 26 president. This historical pattern for the executive office when -,. - ~-·•. I

dependent on elections demonstrated that they were subject to external

/ pressures. Jefferson still considered that elections in themselves were

dangerous. For these reasons, he urged that the rotation principle be

incorporated into the Constitution in order to make elections 27 "uninteresting."

As he thought about elections and the executive office, he .became

~- convinced that the United States would eventually have a monarchical

government. The first step in this evolution would be a life

incumbency and then an hereditary office. Considering that Jefferson

wrote this to i~ashington warranted that he (Jefferson) in all 28 seriousness saw the progression from ballot to crown. During the 29 Convention, Franklin also intimated the same thought.

------~------24 Adams to Jefferson, December 6, 1787, Boyd, Papers, XII, 396. 25 G Williams. Smith to Jefferson, December 3, 1787, Ibid., XII, 391. 26 Jefferson to William S. Smith, February 2, 1788, Ibid., XII, 558. 27 Jefferson to Madison, December 20, 1787, Ibid., XII, 440-41. 28 -- Jefferson to tvashington, 1'r1ay 2, 1788, Ibid., XIII, 128. 29 Patterson, Constitutional Erinciples, 81 •

...

______....;..;.;...-...,· --""iiiil" .. --·---~~- '· II ····· .. ,~ ... --· 1~-•• ,,._. '--·---,- ----~=::=;~C.:S-.·.-~,'7"'- ....,,.~, _ _._._ ---·- - · ,..,...., ~---~------~----111111111• ---·- ·-··--·------~ 111111111111------.•~~------.-.lll"ll------.__ - , __ _

-57-

Jefferson hoped that there would be an awareness of the danger 0 • ,,. ,, of unrestricted number of terms in the office of the president and n~ed -l', 30 to change this feature of the Constitution by amendmento He,

.,. however, wanted this amendment to be affixed only after Washington's

stay in off ice had ended. By the middle of 1788, it was ob1viou·s that

Washington was the choice for the o{fice. The forthrightness and 31 integrity of the general made such an amendment unnecessary. But

Jefferson realized that Washington0 would be succeeded by "inferior 32 characters" and then the limitations would be necessary.

While Jefferson was apprehen~ive about this matter of the

executive, he f.ound that no one, at least to his knowledge, agreed 33 with him and shared his fears. Although Jefferson considered himself

alone, there were those in the Convention who thought as he. There had

to be limitations. The impeachment and the qualified veto were not

considered sufficient. Those in the Constitutional Convention who

shared Jefferson's fears thought that the best limitations were "a 34 suitable term of office" and the method of electiori. Nonetheless,

he admitted to Madison that possibly he was wrong and his fears were

30 Jefferson to Washington, May 2, 1788, Boyd, Papers, XIII, 128. 31 Farrand, Constitution, 163, and Jefferson to Francis Hopkinson, March 13, 1789, Boyd, Paeers, XIV, 65lo 32 Jefferson to Carrington, May 27, 1788, Ibid., XIII, 209. 33 Jefferson rejoicedo Finally, he realized that there were three states which agreed with himo They wanted to amend the Constitution so that the president would have been ineligible for reQelection.

Jefferson to iv:Iadison 9 NOver11ber 18, 1788, Ib'ide, XIII, 188. 34 Farrand, ------Constitution, 161. >· •

-58- 35 mistaken. Thus he resigned himself to the will of the majority, but .7 36 he did~not consider that his stand was without foundationo If experienc~ proved that he was right, he hoped that the future generations of Americans ivould move to correct the situation before 37 the republic would be destroyed.

Taking up another aspect of the executive, Jefferson opposed

giving the executive the power of veto on the acts of the.legislature. The Constitutional Convention had given the veto of the executive .J due consideration. Time and time again, the motion was made to have the ' .. 38 judiciary associated with the executive in the exercise of it. It was defeated each time because the judiciary, it was contended, would have the power to declare null and void any laws that were inconsistent 39 with the Constitution. Jefferson's opinion reflected that small group in the Convention which wanted to associate -the judiciary.with 40 the executive in the veto of legislative acts. His alternative desire would have been to give the judiciary the similar power of ( veto and to exercise it independently of the executive. Jefferson omitted any word about the nature of the powers of the president other than the veto. The Constitutional Convention had ------35 Jefferson to r--1adison, July 31, 1788, Boyd, Pae_ers, XIII, 443, Jefferson and to Williams. Smith, February 2, 1788, Ibid~, XII, 36 558. Jefferson to David Humphreys, March 18, 1789, Ibid., 37 XIV, 678-79. Jefferson to Francis Hopkinson, December 21, ~7~8, Ibid~, XIV, 370, and Jefferson to Humphreys, March 18, . 1789, Ibid., XIV, 678-79. 38 ----- Farrand, Constitution, 70, 119-20, and 156-57. 39 ,__ r b i ,d • 15 1 • 40 Jefferson to Madison, December 20, 1787, Boyd, Papers, XII, 440. -59-

created a new type of executive with powers which approached ~ 41 monarchical proportions. This new, figure was so unlike the executive

which Jefferson proposed in his 1783 Constitution that his silence is

· almost inexplicable. The nature of the executive as delineated in the

Constitution of 1787 being purely of an executive nature and without the

judicial and legislative qualities of the British crown was then

entirely satisfa-ctory to him. Yet he had not been prepared for such a

new creation. The executive branch in the Constitution of 1787 was 42 novel to the American scene. Jefferson did not anticipate such a

figure to be evolved considering his 1783 Constitution. In addition,

the makeup of the executive as provided for under the state

constitutions which had been enacted during the decade from 1776 to

1786 did not foreshadow the Constitution of 1787. These constitutions,

just as !efferson's, made clear the exclusion of implied powers and

prerogatives. Executive power could not be exercised without the aid 43 and consent of a council or the legislature. Therefore, Jefferson's

silence on these aspects of the executive can only be considered

" puzzling. **. ** ** 'I(*. **· **

41 Farrand, Constitution, 162. 42 Ibid., 162, and Patterson, Constitution~.! Principl,es, 90-91. 43 Ibid., 83-87.

·.

.• •

.,- "', . \

-60-

The Constitutional Convention had to solve the problem of

representation of both the people and the states in the legislature of

the central government. Two plans, the Virginia and the New Jersey,

were placed before the Convention. Out of the deliberations based on

these attempts at the solution came the "Great Compromise." The "issue

of the large states versus the small states had to be worked out. T-he

aforementioned plans respectively tended to maintain the interests of

t~e group of states which proposed them. The large states were eager 44 to preserve their advantage of size. The smaller states feared the

larger states mainly because their greater population would give them

a decided advantage in any assembly based on proportional representa- 45 tion. The Convention arrived at a compromise out of which Congress :.,. ! evolved as the branch of government where both the people and the •-,.

I states were represented. A bicameral legislature was formed composed 1, .,

fiI I I of a Senate as the upper house, and the House of Representatives as the I .. I lower house. The Senate represented the interests of the states, and

the House of Representatives was based on proportional representation

of the population. The compromise of the distribution of representation 46 between the House and the Senate "captivated" Jefferson.

Jefferson welcomed the making of Congress solely a legislative

body. Under the Articles of Confederation, Congress was both

legislative and executive. In Jefferson's opinion, too much of its ·--- fTt~e had been spent in needless deliberation on the minute details of :Ji 44 Farrand, Constitution, 112-13, 118-19, and 166. Also Madison to Jefferson 9 October 24, 1787, Boyd, Papers, XII, 279. 45 Farrand, Constitution, ':., 97, 101, 107. !: 46 ', Jstferson to Madison, December 20, 1787, Boyd, Eapers, XII, 439-40. -·"!~

-61- f,! . I:.,. 1... an executive nature. He considered it "embarrassing" and troublesome. ,,~ 47 For practical considerations, this reformation was necessary.

Having assented to the need for reform, Jefferson did not feel 48 be out which was not necessary. . that there should an carried ".,

Jefferson's political philosophy did not permit government or any

function of government to ~ave any more power than was necessary for the 49 performance of its duty. The Confederacy needed reforming, and

Jefferson thought in terms of tailor-made reforms.

One issue which Jefferson considered beyond the realm of the

necessary was giving Congress the legislative supremacy over the 50 states. This increase of the power of Congress fulfilled no purpose

other than to deprive other agencies such as the federal courts from

effectively providing a more equitable restraint on the state

legislatures. Jefferson wanted to have the hand of the Confederacy

strengthened but not at the expense of individual or state liberties.

He did not want, just because of the necessity of the moment, these

reforms to carry with them the seeds of the future destruction of 51 American republicanism.

47 Jefferson to Carrington, August 4, 1787, Boyd, Papers 2 XI, 678-79, and Jefferson to Madison, June 20, 1787, Ibid., XI, 480. 48 Jefferson to George \..Jashington, August 14, 1787, Ibid", XII, 36.

49 .. Patterson, Constitutional Principles, 106-08. See also Jefferson to Madison, June 20, 1787, Boyd, Paeers, XI, 481 • .~ 50 Jefferson to Madison, ·June 20, 1787, Ibid., XIj 480-81. 51 Adrienne Koch, Jefferson an~ Madison: The Great CollaQoration, (New York: Alfred A. Knopf, 1950), 35.

·~ . .,.. ::,.=_·

Ill

-62-

Nonetheless, the consensus of opinion in the Constitutional . Convention moved· ·that the central government had to have a means to 52 check state legislation. The past experience of the inability of - the Confederation to enforce its demands upon the ~tates was the k motivating factor in making the federal,constitution superior to the

state coristitutions. It naturally followed that part of this legal

structure would have to include the negative on the state legislatures.

Madison gave Jefferson a detailed explanation for the decision of

the Convention to provide for the power of the central government over

the states. He reviewed for Jefferson the different propositions that

were presented to the Convention for the shaping of federal authority.

Deeply involved in this question was the ultimate nature of the . individual states. Even before the Declaration of Independence, there 53 had been the debates concerning the states. Should there be a

central government with the states either subordinate to it or should ~ the states be abolished? The Confederation was evidence of the latter

choice, but the argument raged on through the decade and into the 54 Constitutional Convention. In order to preserve the states in their

rerogative but also to give the proper authority to the central govern ii 1 ment, there had to be a definition of what constituted the federal and

the state jurisdictions. The central l· 1--. government of the Confederation

had found it difficult to keep the states from encroaching oq_ lts

•- >' ••• •••~•••••••••·~•. ••'-~-"•••~•·• ~ •• ,- •• .,,.•·•••••• ••"" •• • • ~·, """""'","""" , ·•••- .,..,... 52 , ...... •-...-••,• •••••·••••••"""'_,,.-•¥-,>•¥"-"'•--·w..,.-.~· ••·•u•••••• ,.,._.,., ____ ,...... ,,, ,•1.;i.•:.;:,,,i.\'i.:, •.- .. ',',' ",..,. _,wo~••,-.:•_,.;..,..._- •·-•• · • Farrand, Constitution, 48, and'Madison to Jefferson, October 24, 1787, Boyd, Paper~, XII, 273. 53 • Jensen, New Nation, viii-ix, 4, and 83. 54 Carrington to Jefferson, June 9, 1787, Boyd, ~apers, XI, 409, and Jensen, New Nation, 25-26, 245-46, 256-57, 345, 407, and 420-21. --~ .

·, -63- 55 authority. The negative on the state, Madison maintained, was the 56 means the federal government would have to preserve its authority.

Jefferson agreed with Madison's reasoning in principle but not in

.practice. He hoped that there would be a way for the Confederation to 57 enforce its "just authority."

Jefferson feared the negative and what could issue from it. He

did not want to see the element of political coercion enter into

American life. He did not oppose coercion. Legally, it was inherent 58 in the nature of the contract. What Jefferson opposed was the

granting of the power of coercion to the extent where there would be

the propensity to exercise it freely. The Confederation, as Jefferson ,

maintained, had the power but was slow to use it to enforce its

• decisions •

Tyranny in any form was bad. While Jefferson did not want to \ see in the executive the remaking of another tyrant such as the

British crown, he became aware of another form of tyranny. The

supreme po,-1er of government embodied in the legislature also could

lead to a tyranny. Although he had feared the possible establishment

of a monarchy, he considered that "the most formidable dread at 59 present•1 was the tyranny of the legislature. The monarchical

aspirations would die out, but the rising generations of citizens

55 Madison to Jefferson, October 24, 1787, Boyd, Paoers, XII, 274. 56 Madison to Jefferson, October 24, 1787, Ibid., XII, 273-75. · 57 - - Jefferson to Washington, August 14, 1787, Ibid., XII, 36. 58 Jefferson to Carrington, August 4, 1787, ~bid., XI, 678-79. 59· Jefferson to Madison, March 15, 1789, Ibid., XIV, 661.

~. ---- ' ~:' '

.~· .. -64-

..::,, educated in republican ideals would bring about such a legislative tyranny.

Jefferson approved of the granting to Congress the power to tax

and have an independent income. The Congress ot the Confederation had

not been chosen by the people and according to contemporary American

thinking, could not have the power to tax. Since t.he lower house of the

new Congress would be chosen directly by the people, Jefferson approved

of its power to tax. Yet because the House was elected by the people,

he did not think that this branch of the legislature was qualified to 60 legislate for the Union in both federal and foreign matters.

Jefferson had maintained the same opinion with Adams on a prior 61 occasion. In writing to Adams, he just stated that h~ did not feel

that the House of Representatives was qualified to manage the affairs of the nation.

After writing to ~Iadison, Jefferson possibly changed his mind

about the federal power to tax. He had learned from Carrington that

western lands were beginning to be sold. The proceeds from this sale

had been earmarked to maintain the interest of the domestic and the

foreign debt and could possibly even pay off the principal. Another

souce of income which the central government would have, would be the

proceeds from the imposts and customs. \11th these two sources of income

which would take care of the debt and the operating expenses of the

federal government, Jefferson asked Carrington if it would not have 62 been wiser to have left the power of direct taxation to the states. 60 Jefferson to t-1adison, December 20, 1787, Boyd, I:_ae_er~, ·xir, 439-40. 61 Jefferson to Adams, November 13, 1787, Ibid., XII, 351. 62 Jefferson to Carrington; December 21, 1787, --Ibid., XII, 446.

~ :1 1,:'.

' --,l

... -65-

Jefferson had stated to Madison that he approved of the power of

taxation in the hands of the federal government. On the following day,

he debated its wisdom.

Carrington replied to the inquiry which Jefferson posed. Behind

,, Jefferson's questions was the thought that the federal government would . ('· have too much financial power, resulting from the monies from the sale

of western lands, from the proceeds of the imposts, and from direct

taxation. Carrington, in part, agreed with Jefferson that the first

two sources would take care of the servicing of the debt and the

operation of the government. On the other hand, he stipulated that

while this total income would be adequate for peacetime, it would not

be sufficient during wartime whin the total resources of the country

had to be at the disposal of the federal government. Carrington added

that if thi central government did not have the power of direct

taxation under the Constitution, it still would have had then "some

coercive principle" whereby it could requisition its needs to pursue

the war. The most equitable and desireable method, Carrington 63 concluded, was the former constitutional means.

Carrington•s answer convinced Jefferson of the wisdom to have

given the central government the power of direct taxation. In writing

to Washington on December 4, 1788, Jefferson stated that the safety

of the state necessitated the federal government to have at its ' 64 disposal "all resources of taxation." Jefferson apparently had not

63 Carrington to Jefferson, April 2.4, 1788,. Boyd, Papers, XIII, 101-02. ,,.,. 64

Jefferson to t1ashington ~ November 4

·'1: ' .·~

' ,.. -66-· thought very deeply about this power which was necessary to the federal government, and he expressed his gratitude to Carrington for his 65 explanation.

Jefferson hoped that the judicial branch would have been given a . , more prominent role in the government. He welcomed /' a permanent 66 I organization of the judiciary which he considered necessary. In the government I of the Confederation, the federal judiciary was appointed 67 when needed by Congress to hear cases within its jurisdiction. Under the Articles of Confederation, the jurisdiction of the juqiciary included piracy, felonies committed on the high seas, determining appeals in cases of prizes taken on the high seas, and hearing cases involving disputes between states. Under the Confederation, there had been the develop- \,_ ment of a judiciary; but it w~s apparent to the Constitutional 68 Convention of the need for a permanently organized one.

The debate in the Convention concerning the judiciary, centered around the role of the judiciary in the exercise of the veto. The end result of this issue was that such a provision would have given this branch two opportunities to determine the constitutionality of / i legislation. The first would be the veto, and the second would be 69 judicial review after the law had been enacted. The power of veto was reserved for the executive branch. Jefferson would have wanted to 65 Jefferson to ,._~arrington, tvlay 27, 1788, Boyd, Papers, 66 XI I, 208. Jefferson to Joseph Jones, August 14, 1787 ,- Ibid., XII, 34. 67 Farrand, Constitution, 3-4, and "Articles of Confederation," 217-18. Ibid.,

Ibid., SO. 69 Ibid., 156-57. \..

...... -6 7,;.

. have the judiciary _share the power of the veto either jointly with the 70 executive or separately.

· Although he did not specifically state views concerning the ;o. judiciary other than those mentioned, Jefferson considered that the

role of the judiciary should have been broader than as provided for in -··· the Constitution of 1787. Besides the veto matter, he also would have

wanted the judiciary's power increased. He saw this possibility with \.

the addition of a declaration of rights. The judiciary then would have 71 the power of protecting the individual from the power of government.

This would be possible, he surmised, ff the judicial branch of the

· · government would be independent of the other two. His past experience 72 precluded the possibility of this.

At this time, Jefferson wanted the judiciary to have greater

powers than those provided for by the Constitution. Within a decade

·and a half, he would express the notion that the independence of a

branch of government did not infer the progression to despotism and

ignoring the equal independence of the other branches of the govern- 73 ment.

Jefferson reconciled himself with the division of the responsi

bilities of government. He was dismayed that the principle of rotation 74 of office in the executive and also the Senate had been abandoned.

70 Jefferson to t1adi son, December 20, 1787, Boyd, Pa2ers, 71 XII, 440. ~~--.·-.·· Jefferson to Madison, r-1arch 15, 1789, Ibid. , XIV, 659. 72 Patterson, Constitutional rrinciples, 118-19. 73 ------. ------·----·---·---·--- . -.. . -. -· ..-- --· - .· . -··· .. - Ibid!.., 120-21.

74 "'•·:1,, .1 .. ,,.:.. ' '1 Jefferson to Madison, July 31, 1788, Boyd, ··paeers, XIII, 443. '' -68-

He accepted the legislature as it had been formed by the Constitution.

Seeking to implement the powers of the judiciary, he did not foresee

that this branch of the governmen~ would eventually bring him the most interference_ in the exercise of executive poi-Jers as he would

.interpret them when he would be the President of the United States.

r,.

•

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'-!:

;, I . ----

V. -----JEFFERSON AND THE NATURE OF THE GOVERNMENT---- UNDER---- THE - -- CONSTITUTION

' Edward Carrington had speculated ·" on the possible avenues of .1 approach the Constitutional Convention would take toward reforming the

structure of American government. These were either the dissolution

of the states by an extreme form of centralization or a more moderate po~ition keeping the states intact. The national government would be given the jurisdiction over trade, a means of procuring an inde- 1 pendent income, and the former authority in foreign affairs.

Jefferson did not understand, at first, the reasoning for an extensive reformation. He did not want a thorough-going

centralization because of the ease· with which it could be perverted to despotic rule. The experience under the British crown was still fresh in his mind. Jefferson had come to fear government which had at its disposal too much coercive power.

Although he was not surprised, he could not, at first, theoretically assent to the reasoning for the drastic revision which

-, i would give . ! the federal government coercive powers such as the means to have an independent income and especially to nullify state laws. He :1 .

intimated that these concessions came out of a lack of understanding 1

- Carrington to Jefferson, June 9, 1787, Boyd, Papers, XI, 409-10. -69-

\;· .. ,I

-70- \ 2 of the nature of the Confederation. The Confederation was a contract

and as such possessed a certain potent~al to coerce. As Jefferson

:· i~. explained, the Confederation had the power to force a recalictrant

state to accede to its dem~nds, such as pay its obligations to

Congress. It could do this simply by dispatching a frigate to a port 3 of the particular state to exact payment by seizing its commerce. It

was only because of the mild disposition of Congress that this never occurred.

) :;

' Jefferson considered that a government which had much power I 4 delegated to it would be disposed to use it. Such '"" . a government, he classified as an energetic government. While he did not want the

United States to have a government which had more coercive power than

the Confederat.ion, he did not disparage a certain amount of coercion •.

He gave it a place in government. Its purpose was to bring respect to i I

the government and because of its nature to invoke in the people a 5 desire that it never be used.

In actual practice, the power, either delegated or assumed by

tradition, which a government had at its disposal, was -not necessary.

From his position in Europe, Jefferson compared the European situation

.7' with the ,:·· American. He cited instances when the use of these same

6 .~. powers could not gain the desired ends for the government. For I

example, duriag the three years he had been in France, there had been 2 Jefferson to Carrington, August 4, 1787, Boyd, Eapers, XI, 678. 3 Jefferson to Carrington, August 4, 1787, Ibid., XI, 678-79, and Jefferson to Monroe, August 11, 1786, Ibid., X, 225. • 4 ~ Jefferson to Carrington, May 27, 1788, Ibido, XIII, 209, and Jefferson to Hopkinson, r-1ay 8, 1788, Ibid., XIII, 145. 5 Jefferson to Monroe, August 11, 1786, Ibid., X, 225. 6 Jefferson to Madison, December 20, 1787, Ibid.,- XII, 442.

.. ,;t.l.t '1/,.·c,..1·~1~~•• , .•.' ,,.,:,,-.•, . ·~ ....

...... -71- three insurrections. Jefferson also added to this that France had to maintain an army of two .to three hundred thousand men at all times. According to Montesquieu, who considered Turkey to be the most despotic

~ · of all European nations, Jefferson stated, that there insurrections ,1 were almost a 'i daily occurrence. In contrast, the Shays' Rebellion, the only public . ' disturbance involving bloodshed in the eleven years of the Confederation and affecting only Massachusetts, was mild and almost 7 insignificant. He concluded that a government could pot achieve the loyalty of its citizens or order by force of arms. Although Jefferson opposed an energetic government, he wanted the United States to have a stable government which was not dependent on the states. The central government under the Articles of Confederation depended on the states. The stability of the government, as Jefferson understood it, meant that the national government would nave the means of perpetuating itself without "leaning for support on the state 8 legislatureso" He had summarized what he meant by a stable govern- i ment to the Comte de Moustier, the French minister plenipotentiary to r-·· the United \\:,,.._. ..~ States. In Jefferson's opinion, the nation would benefit from the good features of the Constitution by the "consolidation of ,-··------~, l our government,- a just representation, an administration of some 9 permanence •• ·" A stable, though not energetic, government would have the power to act within its juri~diction in behalf of the people with policies of a certain continuity. " 7 Jefferson to rwiadison, December 20, 1787, Boyd, Papers, XII, -..;.;_~ . 442. 8 \ ; -~· Jefferoo:n to Madison, December 20, 1787, Ibid., XII, 439, and Jefferson to Dr. Richard Price, January 8, 1789, 9 Ibido, XIV, 420.

Jefferson to Moustier, •. I, May 17, 1788, Ibid., XIII, 174. ..

. Ii..~. "' ·-• ' . '

,I' -72- ,_

Jeff er son• s concept of a stable government dl"d not preclude one

' -that could not change. An essential facet of bis political philosophy 10 was cl11angecp A government could not presuppose a rigidity and an

. unresponsive attitude without adjusting itself to the changing

conditions of the people. Moreover, there had to be a wf.llingness of

-the government .to move quickly and forthrightly to serve its people ~-·· ,. best. In- this respect, government had to display flexibility.

Jefferson maintained that a good government had to be a stable govern

ment with constitutional means for bringing about necessary changes.

Since Jefferson was not hostile to change, bis anxious anticipation

of the Philadelphia Convention can be explained. He was sentimentally :I attached to the Articles of Confederation to such an extent he

venerated that instrument of government. Still he considered it needed /{ amending. After having read the Constitution of 1787 and discussing

and reflecting on its structure and provisions, his estimation of its

wisdom grew until he accepted it with only two reservations.

Jefferson did not promote change for the sake of change. The

-~ ' underlying motive had always to be that change was necessary for the

democratization of the social and political order so that an

individual's liberty to advance as a human being would not be

restricted by tradition or outmoded legal strictures. For this reason, 11 he wrote the bill which would separate church and state in Virginia. ' ._ I

As a revolutionist, Jefferson was a cautious one, not seeking to make 12 wholesale reforms, but only to change that which needed alteration.

------10 ------Patterson, Constitutional Princieles, viii. 11

Jensen, New Nation 9 131=320 · 12 Schachner, I, p. 241, and Jensen, New Nation, 138. " . t'

-··

... __ ·---. / --73--

' .. ,,,.,,,. ,... ;,,, This philosophy was evident in Jefferson's justification of the :\ Shays'· Rebellion and explained his insistence for leniency for the

' , .. _._ ,:: insurgents. The British newspapers referred to this civil disturbance .. 13 as an example of the "anarchy" reigning in the United States. The rebellion and its allied threats propelled Washington· out of retire

. t ment and caused him to take a more active'' role in national affairs • The Constitutional Convention, according to Jefferson, had been frightened by the occurrence of .the rebellion. With the misunder- '.r standing of the operation of the Articles of Confederation and the Rebellion, there were those who truly felt that the union was on the verge of disintegration and about to be thrown into a state 14 of anarchy.

On t.he other hand, Jefferson viewed the Rebellion as a sign of health. The people ... ~ were not pathetically submissive to abuses, whether these were imagined or real. Instead, when they realized that the government was not attentive to their needs, they sought the only means at their disposal to correct the situation and make their leaders aware of the reason for change. In this light Jefferson viewed the Shays' Rebellion and could not condemn it. He stated that "God forbid 15 we should ever be 20. years without such a rebelliono" The right of the people to rebel could not be denied them. The people were \ - 16 expressing their opinions. Rather than castigating the hapless ------·-13 Jefferson to Williams. Smith, November 13, 356. 1787, Boyd, Paeers, XII, ,_ 14 David Humpltreys to Jefferson~ November 29, 1788, 15 Ibid., XIV, 301. Jefferson to Williams. Smith, November 16 13, 1787, Ibid., XII, 356. Jefferson to !.!',· Carrington, January 16, 1787, Ibid., XI, 49.

·). -74- ~· I ) insurgents for their ignorance, Jefferson applauded their actions as i,

,,'.'• the "censors ,, of their governors."

Jefferson conceded the possibility that the people involved in·

the rebellion acted out of ignorance. If they had been kept informed

of the affairs of government, the rebellion would have never occurred.

Moreover, he asserted that it was the duty of the government to keep

the people aware of its affairs~ Jefferson did not consider govern- • \ ment as a being apart from the people and with an organic existence

~ of its own:. In fact, it was a school in which the.people were to be 17 educated and trained to become responsible and active ci.tizens.

While Jefferson considered that the Constitution showed evidence 18 of having been greatly influenced by the Shays' Rebellion, he also

viewed it as the result of the people .working to bring abou;, a change

in 'the nature of their national government. Romantically, Jefferson

spoke of the Constitutional Convention as the fruition of the desire· of 19 the people to correct their own situation. On many occasions he

referred to the convention in this light. The condition of national

tranquility under which the Convention worked gave Jefferson another

reason for stating that the American people were superior to all

others. He stated to Edward Rutledge that "we can surely boast of

having set the _world a beautiful example of a government reformed by 17 Jefferson to Madison, December 20, 1787, Boyd, Papers, XII, 442, and "Enclosure," Jefferson to Uriah Forrest, December 31, 1787, Ibid., XII, 478. . 18 Jefferson to William S. Smith, November 13, 1787, Ibid., XII, 357. \ V. 19

'(), ' Jefferson to David Ramsay, August 4, 1787, Ibid., XI~ 687; Jefferson to Ralph Izard, July 17, 1788·, Ibid., XIII 373; Jefferson to 1 Dro Richard Price, January 8, 1789 9 Ibid., XIV, 420; and Jefferson to Humphreys, March 18, 1789, Ibid., XIV, 678. i

I " ..

·- __ .... _ ___,r,

-75-

q 20 reason,. alone without bloodshed." This circumstance of voluntary ~: reform without civil disturbance impressed Jefferson for some time. He had voice.d similar sentiments to C.\11.F. Dumas, the agent for 2f the United States at The Hague. The possibility of such a movement for change taking place in almost idealistic fashion affected Jefferson.

During the period between the first reading of the Constitution and the inauguration of the new government, Jefferson rarely mentioned the mechanism for the amending of the Constitution as one of the good features. Yet it can be inferred that he included it in what he considered as the "good" in the Constitution. He was intensively aware of it and surmised that it would be used often. In fact, he hoped that 22 it would be used often.

< He spoke of an amendment to make the re-eligibility of the executive unconstitutional and to introduce the concept of the rotation of offices. Its use in this respect would serve as a means to 23 preserve the republic and prevent its corruption. The connotation of the amendment process was an extremely democratic feature for 24 Jefferson. As the Constitutional Convention became to Jefferson a symbol of democratic action, the same spirit had to be carried into the 20 Jefferson to Edward Rutledge, July 18, 1788, Boyd, Papers, 21 XIII, 378. Jefferson to C.\~.F. Dumas, September 10, 1787, Ibid., XII, 113. See also Jefferson to Ralph Izard, July 17, 1788, Ibid.,- 22 XIII, 373. Jefferson to John Rutledge, Jr., February 2, 1788 9 Ibid., XII, 557 and Jefferson to ~1oustier~ May 17, 1788, Ibid., XIII,-- WWW 174. 23 Jefferson to Alexander Donald, February 7, 1788, Ibid., XII, 24 571. Jefferson to Alexander Donald, February 7, 1788, Ibid., XII, 571. (\ ·, i !

'1,

-76-

•' Constitution.' The element of change, not for the sake of change, would

bring about adjustment of the government in the striving toward 25 perfection. Jefferson's faith in the eventual fruition of the

perfect government was a secure one. It would be a matter of time and

•.,cl 26 the exercise of the "good sense and free spirit" of the people.

The element of change in Jefferson's political philosophy was in

evidence as he critically viewed the Constitution qf 1787. It presented .... \ ~.(. \;,. points which Jefferson could not accept. It can be stlfrnised that unless \..., . .. _.,~ ....,, ""·- there was a means to amend the Constitution more easily than the Articles

of Confederation, he would have not acquiesced to those features which 27 he considered minor objections.

25 Jefferson to lv1oustier, May 1'7, 1788, Boyd, Papers, XIII, 174, and Jefferson to Madison, December 20, 1787, Ibid., XII, 442. ~ ,,I 26 ,,I II Jefferson to William S. Smith, February 2, 1788, Ibido, XII, 558; Jefferson to Washington, fviay 3, 1788, Ibido S) XIII, 128; and Jefferson to C.t,1.F. Dumas, February 12, 1788, Ibid., XII, 584. Also see Jefferson to Edward Rutledge, July 18, 1788, Ibid., XIII, 378. 27 Jefferson to John Brown Cutting, July 8, 1788, Ibid., XIII, 315 •

__ , __ - ...... ------·- ' . --- ' . .: --- --·------.~ ·------. ·----·----...--~ .. ··-·------' -·--·-. -~------·--:~------;-- .

•" /' -,""'_. ~ '

:~ .• .,

I. VI. -----JEFFERSON --AND --THE ---BILL -OF ---RIGHTS'

On r.,1arch 4, 1789·, the new government of the United States was.

inaugurated. Jefferson's remaining objec~ions to the Constitution ' were major ones. There was no provision for the rotation of offices

of the executive and the Senate after one term or a limited number of

terms. There also was the absence of a bill of-rights. Jefferson was

anxious to see that the republic would never be perverted.; For this

~ reason, he wanted to avoid any form of permanent incumbency which

would eventually lead to a monarchy or some other despotism. But he

was equally aware that the people had to be protected from the 1 government. His presence in Europe brought him face to face with 2 governments which ground the people "to atoms." \.Jhi 1e he had been

sensitive to preserve individual rights, Jefferson became hypersensi

tive to do so because of having been in Europe.

John Adams sent Jefferson his first copy of the Constitution.

In his first letter in which he commented on the Constitution, Adams

asked Jefferson what his opinions were on a declaration of rights and whether such a declaration should have preceded the instrument of ... 3 government. Jefferson never answered Adams' question. The 1 Patterson, Constitut!onal Principles, viii, and Jefferson to Madison, July 3i, 1788, Boyd, Papers, XIII, 443. 2 Jefferson to Monroe, August 9, 1788, Ibid., XIII, 490. 3 :~-- Adams to Jefferson, November 10, 1787, Ibid., XII, 335.

-77- I

-78-

discussion on the Constitution ended abruptly with Adams• letter of

December 6, 1787. Adams was more concerned with bringing his European 4 affairs to an end and returning home to the United States. Jefferson's

answer to Adams• question was in evidence in the volume of correspondence

he wrote on the subjecto He had wanted such a declaration incorporated 5 in the body1 of the Constitution. In this manner, a bill· of rights,

he felt, would have a greater effect than if just amended to the

Constitution. Still he would accept an amended bill.

Jefferson first mentioned the effect which the Constitution's lack

of a bill of rights was making in American newspapers. His

correspondents kept him not only infor~ed by their letters but also

supplied with packets of newspapers and journals. Summarizing for

William Carmichael the objections of the papers, he stated that they

., principally dealt with the nature of th·e government and the rights of

the people in relationship to it. The general government would act

directly on the people- by-passing the state government. Yet there

were no safeguards that could restrain the federal government. Such

safeguards should be the renunciation of the power to keep a standing

army, the liberty of the press, and the insurance of trial by jury in 6 r,, civil cases.

Jefferson expanded his conception of a bill of rights when he

wrote to Madison on December 20, 1787. He completed his bill with

freedom of religion, restriction against monopolies, and a permanent

4 Adams to Jefferson, December 10, 1787, Boyd, Papers, XII, 413. 5 Jefferson to Humphreys, March 18, 1789, Ibid., XIV, 678, and Jefferson to Madison, March 15, 1789, Ibid., XIV, 660. 6 Jefferson to Carmichael, December 15, 1787, Ibid., XII, 425.

j ·~ ~·,1.,, 41 ,,' 'l ..

, -79- 7 writ of habeas corpus with.no provision for its suspension •.

Madison had previously stated to Jefferson that the reasoning of "' the Constitutional Convention for not including a bill of rights. The

main point of his discussion maintained that within the checks and

balances of the makeup of the new government and the interplay of the

various sections of the·country, there would be a measure of protection 8 of the individual's rights. According to Farrand, the matter of a

bill of rights to preface the Constitution was not brought up until

near the end of the convention. George Mason, the author of Virginia's

Bill of Rights, would have allowed the omission to pass if only some

"general principles" had been outlined for a fut~ framing of such a 9 bill. This was voted down unanimously. The proposal was turned

do\m because most of the states already had provisions for the

protection of the rights of individuals. As a result Mason refused " 10 to sign the Constitution.

Jefferson was not satisfied with Madison's explanation of how

the individual's rights would be preserved. The power of the central

government to nullify state laws, Ma~ison had contended, ~ould act as \ a means of preventing the states from infringing on the individual's 11 rights. Jefferson could not accept the thought of insuring the

individual's rights by implication. He countered fviadison by stating

that the people were entitled to a bill of r~ghts from any government

.~ .-:,· Jefferson to Madison, December 20, 1787, Boyd, Papers, XI, 440 • 8 Madison to Jefferson, October 24, 1787, Ibid., XII, 276-79. 9 Farrand, Constitution, 185-86. 10 ------George Mason to Jefferson, May 26, 1788, Boyd, Paeers, XIII, 204-06. 11 ~1adison to Jefferson, October 24, 1787, ,Ibid., XII, 276.

i.. I .. -80-

• I , under which,they lived and that no government should refuse to grant 12 such a ,bill.

The fact that the Constitution was being well received, according 13 t ---- to the reports that he was receiving, surprised Jefferson. He had

considered that the Americans were people who t.:,ere jealous of their

liberty. Yet three-fourths of them would live under a government which

did not insure them their rights. The American people had undergone a.

change which Jefferson denoted as tta degeneracy in the principles of

liberty." He thought that it would have taken four hundred years for

the subversion of American liberty to be accomplished when it seemingly 14 took only four,

The Americans were not as unconscious of their liberty as

·Jefferson had surmised. There were considerable minorities in all the

states which ratified the Constitution as of December, 1788, which

wanted this insurance of their rights. In Jefferson's opinion, the

adoption of a bill of rights would thus take on the role of a

q unifying force to bring all the people together and firmly behind the 15 new government.

Jefferson's desire, however, for a bill of rights did not have

only the narrow role of appeasing the opposition to the new

-- . Constitution. It was the ninstrument of security for the rights of the ~ people" which should not have been overlooked in the framing of the '·I.. '\ '~-~2 Jefferson to Madison, December 20, 1787, Boyd, Papers, XII, 440. 13 Jefferson to John Rutledge, Jr., February 2, 1788, Ibid., XII, 557. 14 Jefferson to William S. Smith, February 2, 1788, _,_Ibido, XII, 558. . .J 15 Jefferson to Washington, December 5, 1788, Ibid., XIV, 328. Also Jefferson to Hopkinson, December 22, 1788, Ibid!., XIV, 370. " -81- -~. 16 •-1 I Constitution. In his own "Draft Constitution of 1783," he incor-

porated the essential rights in the body of his constitution as 17- .. I -~~ ... limitations on the proposed government. He considered then ·such a

bill to be most. impor~ant since it would serve all the people. The

lack of a bill of rights and the re-eligibility of the president.

presented threats to liberty. The difference between these two

weaknesses of the Constitution was that the lack of the bill of rights

presented the immediate threat. Jefferson feared the persistent 18 encroachment of government on the individual's liberty. The lack

of a bill of rights in the Constitution would have an immediate

effect on t·he status of liberty in the United States. Jefferson, to

his satisfaction, learned that the majority of the states ratifying 19 the Constitution, specified that a bill be amended to the Constitution.

Jefferson had carried on with Madison a conversation on the bill

of rights. From Madison's point of view, a bill of rights could be

either a service or a disservice to the operation of the government.

He favored the inclusion of one in the Constitution but did not 20 consider the exclusion in the same light as did Jefferson. Nonetheless,

Jefferson expressed his ~satisfaction that r~1adison was not overtly 21 against the amending of a bill to the Constitution. 16 Jefferson to Hopkinson, I'vlarch 13, 1789, Boyd, Pape~, XIV, 650-51 •. 17 ' .. Schachner, I, 121, and Padover, Complete Jefferson, 113. Also Jefferson to !Yladison, I'-1areh 15, 1789, Boyd, Papers, XIV, 660. 18 Jefferson to Carrington, May 27, 1788, Ibid., XIII, 208-09. 19 Jefferson to Carroichael, August 2, 1788, Ibid., XIII, 502. 20 r\: l~di son to Jefferson, October 17, 1788, Ibid., XIV, 18. 21 Jefferson to Madison, March 15, 1789, Ibid., XIV, 659~

! ' .I_.

> .,..;., I ,'cl<) • ~ -82-

In the course of his discussion with Jefferson, Madison advanced

four premises on which the Constitutional Convention based its reasons

,; for the exclusion of a bill of rights. The first ·of these reasons,

Madison offered, was that the Constitution granted certain powers to /'

the federal government. These enumerated powers implied limitations.

Jefferson had already repudiated this point. He refused to accept the

idea of protecting the individual from the abuse of governmental power 22 by implication.

Madison's second contention was whether it was re~lly possible to

guarantee a particular right of an individual when there was the

opposition of majority proportions in certain sections of the country

against it with the expresseo intention to deny it. ,. He used as an 23 example the purpose behind religious tests in New England. The

intent of these was to eliminate non-Christians from holding political

offices. Jefferson realized and understood this insidious situation

and its frame of mind. His answer to f'-1adison was that "half a loaf is 24 better than no bread." To insure all the rights to which the people

would be entitled would be the optimum desire. In the practical

situation of everyday life, the best that could be done would be to insure those rights which could be insured.

The third point was another which Jefferson had already refused r· to accept. It was the one on which Madison had based his former

argument against the bill of rights. The tension arising out of the

limitations on the federal government and the "jealousies of the 22 George Mason to Jefferson, 1'1ay 26, 1788, Boyd, Pa·pers, XIII, 204-06. - 23 Madison to Jefferson, October 17, 1788, Ibid., XIV, 18. 24 Jefferson to Madison, March 15, 1788, Ibid., XIV, 660. '.

( \ -83- subordinate governments" would g·ive the individual a measure of 25 ·" protection. Jefferson took issue with Madison's reasoning. In this particular phase of government, a bill of rights not only was necessary but extremely essential to the understanding of this tension. A bill of rights in the midst of the tension between the two levels of gov~rnment would function as the basis of the opposition. Positing that this tension would exist precluded the necessity of principles on which to judge the acts of either level. The very nature of a bill of rights would thus be the underlying presupposition for all opposition 26 to each level of government.

The fourth point that Iviadison took up in his argument for the II exclusion of a bill of rights from the Constitution by the convention l was that past experience demonstrated that a bill of rights was £ ineffective in the protection of the individual. The greater majority of the states had~included a bill of rights in their constitutions. Referring to these, Madison stated that the overbearing majorities of these states had repeatedly violated the "parchment barriers." The crux of the problem laid with the will of the majority of the community. The majority would rule and government, its instrument, 27 worked its will. Jefferson agreed with Madison that a bill of rights had not always fulfilled its purpose. Yet it had a place in the instrument as ', ' the restraining force on the majority, and it would always be the basis on which there could be an appeal for the maintainence of one's rights.

------2 S Madison to Jefferson, October 17, 1788, 26 Boyd, Papers, XIV, 18-19. Jefferson to Madison, March 15, 1789, Ibid., 27 XIV, 660. Ma 11ison to Jefferson, October ' \ 17, 1788, 1.bid., XIV, 19-20.

/ --- 111!!111!111!1.".. IJll!!!l.l!l!l ...... ,_1!!111111 ___ ...... ----·--"""""'· - --- ...,,..,,,,._-...... llll!lll!llll!l...... ~~'l!!lllll!!lfll~~~-- 1111111111111- ...... ------

-84- In connection with his appraisal of the function of a bill of rights, Madison had questioned the essential purpose of a bill of 28 rights in a republic. He readily admitted to the justice of such a legal device in an absolute monarchy where the supreme ..... -...... power, the legislative, was lodged in the hands of one person. This monarch also had the use of physical power to carry out his will with dispatch. The combining of the political and the physical powers under one head had led to the abuse of the people. Under such circumstances, the people needed desparately a refuge such as a bill of rights. On the other hand in a republic, the legislative power was held by a body which was representative of the people. The acts of this body indirect_ly would have to be considered to be expressions of the will of the majority of the people. A bill of rights thus acting as a restraint on physical and political power which was held by the people would be a self-imposed restriction.

As incongruous as the function of a bill of rights may"'-have seemed to Madison, it still was a necessity, in Jefferson's thinking, even in a republic. Jefferson feared that a form of abuse parallel to that of \ a monarch would eventually result in a republic~ He referred to it as 29 the tttyranny of the legislatures." The common tendency of government, as Madison stated and of which Jefferson was equally aware, was to increase 30 its own power at the expense of individual liberty. The end result of this discussion on the bill of rights between 28 Madison to Jefferson, October 17, 1788, Boyd, Papers, 29 XIV, 19-20. Jefferson to Madison, March 15, 1789, Ibido, XIV~ 6610 See also Jefferson to Hopkinson, March 13, 1789-, Ibide, 30 XIV, 650. Madison to Jefferson, October 17, 1788, Ibid., XIV, 20.

,t -85- ·

Jefferson and Madison ended with r-tadison accepting· the fact that a bJll

r' of rights was necessary even in a republie. Jefferson hoped that the ...... ~~·

addition of a bill of rights would not in any way alter the 0 whole 31 frame of government, ·or any essential part of it. n Thus these two

... men came to agree on a bill of rights. Each had his own point of view which served to help the other understand the issue more fully. ** ** ** ** ** ' **

In the specific discussion on the elements' of a bill of rights,

Jefferson conceived that such a declaration should include freedom of

the press, trial by jury, prohibition of a standing army, freedom of

, ..... religion, restrictions on monopolies, and a perpetual enforcement of 32 habeas corpus laws. He especially wanted these particular rights

because they would save the people from utter destruction as was 33 happening in Europe. The people would thus have a means to keep -

the governi~ent from becoming overbearing to the extent where it would

~~ oblivious to the people who by natural right were the originators 34 <' and censors of government.

The element of a bill of rights on which Jefferson strongly

expressed his feelings was trial by jury. While Madison felt that

rights of the individual could be preserved by the tension resulting

from the interplay between the federal and state government, Jefferson

------31 Jefferson to Madison, March 15, 1789, Boyd, Papers, XIV, 661. 32 Jefferson to Carmichael, December 15, 1787, Ibido, XII, 425; ; - '.~· Jefferson to Madison, July 31, 1788, Ibid., XIII, 442; Jefferson to Hopkinson~ ~1arch 31, 1789~ Ibid., XIV, 650; and "Autobiography,"

Koch and Peden 9 Writings~ 8le 33 "Notes on Virginia," Ibid., 265. 34 Jefferson to Carmichael, December 25, 1788, Boyd, Papers, XIV, 385. I -· :i,.-'

-86- could not see how this would be possible~ In particular, such a -tension could not insure trial by jury in civil cases in those states 35 which had abandoned it. There were other states which were also thinking of giving up trial by jury. A specific statement ·would bring 36 "this palladiumtt uniformly to-all the people. The legal procedure of trial by jury was an exercise of the people. Abandoning trial by jury would eliminate the people from this function of the government 37 to which they had a right.

In a similar vein, Jefferson did not -consider that the government gained any security during a period of civil crisis by suspending the / ' writ of habeas corpus.· He urged a permanent -,_ ,Jrit tvhich could never be suspended. His reason was that the government did not gain greater security by the suspension. The government had all the means within the due process of law to preserve itself. Jefferson thought, in particular, of the effect on the people who lived under a situation where they were never secure of their rights because of the injudicious and frequent suspensions of the writ at the convenience of the 38 government.

As an example, Jefferson pointed to the instances in England when the writ had been suspended. In each case, he commented, the government did not really gain any advantage. As for the deciding of cases brought before the courts, these were found to be either of a treasonable nature or just "sham-plots." 35 Farrand, Constitution, 185. 36 Jefferson to Madison, December 20, 1787, Boyd, Papers, 37 XII, 440. Jefferson to Humphreys, t-1arch 18, 1789, Ibid., Xl_V, 678.

38I -., Jefferson to Madison, July 31, 1788, Ibid., XIII, 442. -·' -. -•.· ,. ,•·, -, J ' " ""';I,'·: '• ,,r,' ''·'" .,,, .,, •,•,•" ~ .. Le •• • • ~

., ·... -~-: -87-

Jefferson had a measurable respect for the purpose of the press

in a society. It could not be muzzled by the government but had to 39 be free to print the truth as it saw it. During the Shays'

' Rebellion, Jefferson had written to Carrington giving him his opinion

on the situation. He stated that much of the Massachusetts discontent .. could have been mitigated if tl'\e press would have kept the peopl1e

informed of.the doings of the government. This was the duty of the . press. In effect, Jefferson considered that the press, 1n com-

40 I" parison to government, was more important. So that. the people lo

could understand newspapers, Jefferson also urged that government take upon itself the responsibility to provide educational facilities for j 41 ~ r· II the people. ,•

I-: While giving the press optimum freedom to print what it would ~ want and also a specific place in society, he stated to Francis

Hopkinson that he would like to keep his name and opinions out of 42 the papers. The only legal responsibility on the press would be

that it would be liable to legal prosecution for printing and 43 , publishing false information.

Reflecting the strong dislike of his contemporaries for the

military, Jefferson wanted to forbade a standing army. The Society

of Cincinnati, which had been organized in the latter days of the 39 Jefferson to t43dison, July 31,_A 1788, Boyd, Papers, XIII, 442. 40 Jefferson to Carrington, January 16, 1787, Ibid., XI, 49. 41 Jefferson to Madison, December 20, 17~7, Ibid., XII, 442. 42 .\ Jefferson to Hopkinson, lv1arch 13, 1789, Ibid.,- XIV, 651. 43 . - "Draft of a Constitution,tt Padover, Complete Jefferson, 119. •.. }L '

-88- \ 44 war, aroused many suspicio~s because , of its military character.

In his "Draft Constitution of 1783," Jefferson subordinated the 45 military to the civil power. To counter any who considered that a

standing army would be the means of defense, he stated in his Notes

2!! Virginia, that a land army was useless for offense nor the best

or "safest instrument" for,defense. Actually, the ocean would be the

battlefield with any enemy that would dare attack the United States •.

Even if a land army would be landed, it would only be in detachment

strength. /Jefferson could not conceive that a full-scale military

operation could be brought to the United States. Therefore, the

small size of any enemy landing force would be such that a mil·itia 46 could be quickly assembled to mount a defense.

Jefferson explained to Colonel Monroe his military strategy. A

permanent land force would, in effect, be an instrument of coercion

in the hand of the government. For this reason, there should not be

one. The United States had to have a small navy. This would serve<

not only for defense, but also it would give some stature to the 47 government. Jefferson wrote to Monroe on August 11, 1786. At that

time, he was negotiating with the Barbary Coast principalities. His

first reaction was to go to war against them ~ather than negotiate "' according to their terms and methods. ,, .•T ... . Jefferson• s opinions had not undergone any slgnif icant change· 44 Jensen, New Nation, 261-62, and "IV. Jefferson's Observations on Demeunier' s Manuscript, 91 Boyd, Pa12ers, X, 53. 45 "Draft of a Constitution,'' Pad over, Complete Jefferson, 119. 46 "Notes on Virginia,tt Koch and Peden, ~ritings, 285-86. 47 Jefferson to Monroe, .A,.ugust 11, 1786, Boyd, Papers,· X, 225. : . i

·, -89-

when he considered a constitutional statement forbidding a standing

army in peacetime. He would have rather welcomed a more thorough

training of the militia to take care of the peacetime garrison and 48 custodial duties of the regular army.

The immediate possibility of an invasion from either Canada or

Florida did not make an impression on him. Madison took the view

that even if there was the proh.i bi tion of a standing army and if there

was the intelligence that military preparations were being undertaken

for an invasion of the United ,C,,,..."-States from either of these areas, "a paper declarationtt would not prevent the United States frornalso

preparing its forces even though war had not been declared. Madison

added that the best security for the Uni'ted States would be to remove 49 I the very threats to her security.

The external threats in fact did not concern Jefferson. There

remained ever before him the fear that the government would use the

armed forces to coerce the citizenry. This luxury, he did not want

left in the hands of the government. It was too dangerous an .,' so instrument. The presence of an army placed the people at the

mercy of the govern~nt, and the "rights of the nationtt would be in 51 danger. 52 Jefferson added the unlimited restriction against monopolies. ., I 48 Jefferson to l·1adi son, July 31, 1788, Boyd, Paoers, XIII, 443. ·· · ~-- ~-· · 49 t-1adison to Jefferson, October 17, 1788, Ibido, XIV, 21. 50 In commenting on the pre-revolutionary rumblings emitting from the

French Assembly of Notables 9 Jefferson stated that the French situation v1ould not be improved because of "the dangerous machine of a standing armyo 90 Jefferson to Dr. Richard Price, January 8, 1789, Ibid. , XIV, 423. 51 Jefferson to Humphreys, March 18, 1789, Ibid., XIV, 678. 52 Jefferson to Madison, July 31, 1788, Ibid.,- Xt\II, 442. / -- \.

-90- There would not be by legal sanction any situation that caused distress among the bulk of the people just for the advantage of a very small _group. Jefferson, in advocating this prohibition to protect the people from an abuse based on a contractual and legal arrangement, had in mind the immediate problem he had been facing since he had been in France. This was the tobacco monopoly in France held by the Farmers Generalo It had contracted with Robert Morris to supply it with American tobacco. The contract called for a delivery of twenty thousand hogsheadsper year. The stipulations of the agreement provided for delivery in American ships to certain French ports which were otherwise closed to American shipping. The monopolistic arrange~ent of the Farmers General specified that all American tobacco would be purchased from Morris. Thus he was able to depress the price of tobacco and reap a magnificent profit. Jefferson had worked by 53 enlisting the help of Lafayette to destroy this monopoly. .--· Jefferson's work putting an end to this monopoly was unsuccessful. The most he could get for his labors was the assurance that the contract would not be renewed after 1787. The new arrangements that were contemplated would have been more equitable for the American 54 tobacco producers. Nonetheless, the entrenched Farmers General was able to circumvent royal orders to continue, in effect, its contract 55 with Morris by giving him preferential treatment. 53 Jensen, New Nation, 202-04. 54 Andre Limozin to Jefferson, August 19, 1787, Boyd, 47. Papers, XII, 46- 55 Jefferson to Pierre Samuel Dupont, October 6, 1787, Ibid., XII, 211-12. Also rvladiso~ to Jefferson, December 20, 443. 1787, Ibid., XII,

\ -91-

l J In Jefferson's opini6n, no citizen should have any power or I I i l special advantage over the affairs of other citizens. Even though, he i t D \ realized some might contend that the prohibition of monopolies might ,,'l,: ) I!,. discourage the desire to develop such possibilities, he opposed them g \· 56 because of the limited scope of the benefits derived from them.

Essential to human freedom was the freedom of the mind. Jefferson's

concern for the freedom of the mind involved him in the struggle to

achieve freedom of religion in Virginia. He based the presuppositions

. of this movement on reasons which differed from those of the philosophes 57 of France who also advocated freedom of religion. The philosoehes

in many respects had come· to consider the tradition.al religious patterns 58 as totally false and inefficacious. On the other hand, Jefferson had a place for deistic or theistic religions in his world. But he considered

that religion was a private matter and not subject to public administration.

On this premise, Jefferson framed a bill for religious freedom

\ in Virginia which denied to one religious institution its special legal privileges and position and equated it with all other religious sects in the state. The issue of the bill was the separation of church and 59 state. It was finally enacted after a struggle of almost seven years.

Jefferson's urging for what he conceived to be a bill of rights grew out of his experience and knowledge. The foreroost consideration ~------==56 . Jefferson to Madison, July 31, 1788, Boyd, Papers, XIII, 443. 57 Malone, Rights of Man, 110-11. 58 Carl L. Becker, The Heavenlx Citx of the Eightee~th-Century Philosophers, (New Haven: Yale !!Jliversity Press, 1932), 49, 63, and 69. 59 '· Jensen, New Nation, 131-32.

.'., ,,

• • •••• '-i, .. ~,...,, __...... ___ .._...... )

I -92- "' was to maintain the aggregate of the people in th,eir dignified _,.,,, ..- --...,....- state

of being the sovereign power of society. Government was only ,. . .(.' a means

of maintaining order and regularizing the functions of society so that

all the peopLe might equally enjoy i~s advantages.

Each of the elements of his. bill of rights served a specific

.,, function in securing the people in their relationship to government.

Trial by jury gave the people the right to "try their peers. The writ ,,. of habeas corpus would prevent the government from arbitrary action

against the people. Even in times of crisis the government would have

to ·remain within the mechanism of due process of law. The end result

of this would be the people having a deep sense of the sanctity o~ the

law.- Freedom of the press would insure to the people that they would

have an unending stream of information of the affairs of their

government about which they would be entitled to know. The lack of a

standing army would make the government more apt to regard the

complaints of the people rather than turn the military on them. In

effect, without a means of coercion, government would have to be •

persuasive and subject to alteration and compromise to meet the

changing needs and demands of the people. The restriction on monopolies

precluded that any segment of the population would be in a position to

aggrandize itself by the subversion of the contractual relationship.

The elimination of a legal religious preference from the political

realm and also urging education for the people were parts of Jefferson's

program to secure the :republic from its immediate enemies- ignorance ... and superstition.

·=--::, :. i i 1) ,,1 ,.,.

.._ ......

.. VII. JEFFERSON AND THE MOVEMENT FOR A SECOND CONVENTION - .•·

The Constitution of 1787 had not been approved by all the

delegates of the Constitutional Convention. There were a few who j',,. refused to sign the document. Others who signed looked to a second

convention to consider amendments forwarded by the state co~ventions.\

It~- had been even stated in the Convention to rework the entire \ 1 Constitution if necessary •. The thought of a second convention was

well received by Jefferson. Madison's long letter of October 24, ~ ~ 1787, had brought information of this matter; but Jefferson already

had a copy of the Constitution. The method of amendment by general

convention had been provided for in the Constitution.

Jefferson was not adverse to the prospect of a second convention.

It this was necessary to produce a better instrument of government· .A that would be more satisfactory to the people, then it should take 2 place. As of December 20, 1787, Jefferson did not consider the

Constitution adequate for reasons already discussed. He wanted a

second convention. He couched his preference as a demand coming from

the people. It would be then the way of insuring the retension of what 3 was good and getting rid of the bad. In reply to Jefferson, Madison 1 Farrand, Constitution, 180-81 and 191-92. 2 Jefferson to Carmichael, December 15, 1787, Boyd, Papers, XII, 426. 3 Jefferson to Madison, December 20, 1787, Ibid., XII, 441.

-93- \ -94-

stated that a second convention to frame a new Constitution would be a

total failure. He did not think that the spi_rit of compromise which

characterized the proceedings of the Convention would again pervade

another conventiono In the meantime, he continued that the elements

which favored disunion had gained popular support in some parts of the 4 country. Nonetheless, he ha.d the assurance that a second convention

would not occur. It stemmed from the probability that the states which 5 had already ratified would not rescind their acts.

After a letter from Washington in which the general pointedly

summarized the situation at home and the necessity for the adopt.ion of

the Constitution to head off the possibility of unforeseen disaster

for the country, Jefferson considered the best choice to be adoption

of the Constitution as it was. Under the Constitution, only nine

states were required to amend the instrument 9f government. It would

take under the former Articles of Confederation, thirteen states for 6 the calling of a second convention. The situation could be stalemated.

The prospect of a second convention attracted those who wanted to

defeat the· Constitution and those who desired to rectify by amendm~nt

certain features or -Omissions of the new plan under consideration. /

During the late summer of 1788, the protagonists of the second

convention idea gained gro~.fid by the Circular Letter of the New York

Convention. The New York Convention had .ratified the Constitution but

also had sent out this circular to all the states calling for an

\ if 4 ~ ;-{ l'4adi son to Jefferson 9 April 22 9 1788, Boyd, Paper~, XIII, 98, and ';\ Carrington to Jefferson~ April 24, 1788, Ibid., XIII, 101. 5 Madison to Jefferson, April 22, 1788, Ibid., XIII, 98-99. 6 Jefferson to Thomas Lee Shippen, June 19, 1,788, Ibid., XIII, 277.

r·;. ')· ·. ,~-· 4.· ----~.-.,.... -... ------~--~.-.,.,.- .-.•....,-- __ ,,.._-.. ~-.. ,.,..-..... ,,,~"-"-..,...__._-.-...-~"--·a,, --,,•"-"------"---·--·-~-L...... ,_.~ .. --'>l~- ..... -:. ~,...... ••!!'.1:c"'\·M·!III!'!-- Jt.,...,i··· 111 1!111 1111!1.,..... 1111 .. , -.. . ---.--.. d~-,-... _... ------· i -, . i

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·" ,.-. !. I l1 ,· .. -95- .: ; 'i 7 inmediate second convention to consider amendments. ~di son's reaction to this move by New York was one of dread. It would bring,

:u· ~' i.f successful., an early convention. Madison instead urged that there be a cooling-off period. He suggested that there be a year of govern• ment under the Constitution and then amendments be suggested. These ame~~ments, he considered, would be of more value than any made by 8 anyone in the immediate situation.

The New York Circular Letter gave Madison reason for concern. The enemies of the Constitution could use it as a pretext for actually subjecting the entire Constitution to revision. The matter of taxation ·brought on the most opposition. This provision t·1ould be - greatly altered by a second convention. Madison's consolation was that not all areas of the country endorsed the letter. There were those segments of the population which were satisfied with the new instrument of government and were more interested to employ the other means of alteration of the Constitution as provided for under the 9 instrument itself.

The New York Circular Letter gave an added impetus to the desire for a new convention. Another push came from North Carolina. New York had been the eleventh state to ratify the Constitution. In the late surmner and early fall, attention was turned to North Carolina which had 10 in its convention refused to ratify the Constitution. 7 John Brown Cutting to Jefferson, September ·16, 1788, XIII, 608. Boyd, Papers, 8 - ~adison to Jefferson, August 23, 1788, Ibid., XIII, 9 540. Madison to Jefferson, September 21, 1788, ,Jlbid., XIII, .. Madi 624-25, and son to Jefferson, December 8, "1788, Ibido, 10. XIV, 340. McLaughlin, Confederation and Constitution, 312~ and John Brown Cutting to Jefferson, September 20, 1788, Boyd, Papers, xrir, 644. I..,

-96-

. By not ratifying the Constitution, North Carolina did not close 11 the issue. The state had internal difficulties and also had been subjected to external pressures from both friends and foes of the Constitution. In the meantime, preparations for the launching of the new government had begun. The state convention resolved to wait and see what amendments would be added to the Constitution by either a new 12 general convention of the states or by the Congress and the stateso

By December of 1788, Jefferson himself opposed a second

convention. Having been apprized of the intent of some of the opposition to destroy . as much of the Consti~ution and to make it as

I ineffective as possible, he abandoned the thought of another convention. The risk involved, as Madison calculated, was too great 13 to take. He agreed with Madison. . Jefferson had fostered the prospect of a second convention, but within a year changed his mind after be became aware of the risks and

the tenor of those who desired the destruction of the Constitution. As Jefferson became more convinced that the Constitution of 1787 would

provide fol·· a stable and effective, though not too energetic govern ment, he also became intent on saving the Constitution for its good

features. The opponents threated the entire structure and this, Jefferson would not accept.

By February of 1789, the probability of a second convention had lessened and the attention of the opposition turned toward trying to 11 Jefferson to t.Jashington,- December 14, 1788, Boyd, Papers, XIV, 328. 12 John Bro,vn Cutting to Jefferson, October 6, li88, Ibid.,. XIII, 660. 13 Jefferson to Hopkinson, December 21, 1788, Ibid., XIV, 370.

' .. 97. I 14 , l get as many of their number into the new government. Much of the

desire for the second convention was dispelled as it became evident ~· 15 that a Bill of Rgihts would be amended to the Constitutution • .._ ____ ...... _____ ...._.______~14 Jefferson to William Short, February 9, 1789, ijoyd, Papers, XIV, 529. 15 Jefferson to Thomas Paine, March 17, "1789, Ibid., XIV, 673. ,,;-

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VIII. CONCLUSION

Jefferson approached the Constitution of 1787 with one basic

premise in mind. The most important entity of a nation was its

peopleo \ii thout them-, there was no nation. The government of that

nation existed solely for their convenience. and happiness. In itself,

•. government had no reason for being. Nor could any one person f personify the nation or be the interpreter of its general will. The • government could have qo will of its own but had to be the servant of ~ 1 and ever responsive to its taskmaster- the people.

In Jefferson's political philosophy, there was no justification

_of a govern,nent to act against the people. Any argument for the use

of force was unacceptable. Its basic presuppositions contradicted

the purpose of government in society. He referred to such a govern- 2 ment '·as "a government of wolves over sheep. u From his writings,

it can be extrapolated that when the relationship of ruler as

master and citizen as slave existed in a political order, government .... ceased to exist. If a society such as that of the American Indian

existed without a government, then on the other extreme, a despotism

which was too much government had to be considered beyond the

1 Jefferson to_Carrington, January 6, 1787, Boyd, Papers, XI, 49. 2 Jefferson to r'1adi'son, January 30, 1787, Ibid., XI, 92-93. -98-

-·

.•: "'"":"- 'I,·

·.,,. ..',;,':--:·. -99-

definition of what constituted government. Therefore, to Jefferson,

governrn~nt had to be the entity tt1hipl1 came out of a society where the .,

opinion of each individual. had its ~~just influence," and the "mass of 3 mankind" enjoyed a "precious degree of .1 i berty and happiness."

-Jefferson's basic premise of the government ex..f sting for the

sole benefit of the people posited two criteria by which to examine

any instrument of government. The first stemn,ed directly out of his

democratic views. The people had to have adequate legal safeguards

to protect themselves from the power of government. Government, being

of the nature of a contract, contained a certain quantity of force.

This force which emanated out of the contractual relationship between ~

government and people bound both parties to agree by its terms. This

was the natural limit of force a government had at its disp·osal. But

even this quantity had to be definitively examined and contained so as

to prevent an injudicious use of it or an extension beyond its limits.

Inherent in Jefferson's philosophy wa~ the fact that the govern- fI ! 4 ment had to be limited. Government was to have just enough power to

conduct its business and not one bit more. The government, therefore,

could not assume for itself any phase of activity which the people

could adquately carry on for themselves. In particular, Jefferson .. thought of trial by jury. The people had the right to sit in judgment

on themselves. The people, and not a functionary of the state, had

th~ natural right in this matter. Jefferson feared the slow and

persistent encroaching movement of government to assume more and more

3 Jefferson to Madison, January 30, 1787, Boyd, Papers, XI, 92-93. ,4 Jefferson to William S. Smith, February 2, 1788, Ibid., XII, 558.

', I!,,

~I '~ i -100- responsibility for itself. To prevent this from occurring, there had • 0 .

to be barriers. Such a barrier was a Bill of Rights. Although

Madison referred to it as a "parchment barrier," Jefferson thought of, 5 it as the real defense of individual liberties.

The second of the two criteria was that once a society formed a political order which insured for itself order and stability, though not at the expense of its liberty and happiness, then that government had to be protected from itself. Its constitution could not contain '' the seeds of its own destruction. Within its structure, there could not be lurking the cancer ~Jhich would bring about its do1v1nfall. In viewing the Constitution of 1787, Jefferson took exception with the

,0 fact that the executive was always eligible to be continually re elected to the office. The elected head of the government, as·

Jefferson saw him, could because he had all the accoutrements of power at his disposal, stay in office indefinitely. Jefferson was correct in his view. Even though he hoped that the tradition set by Madison,

Monroe, and himself would be the means of f ixiJ1g the number of terms a i"'. president could have, a constitution amendment proved to be necessary.

In like manner, he considered that rotation of offices was healthy for two reasons. There could not develop any form of permanent incumbency or peculiar privilege to an office~ In keeping with his notion of government, it was to be a school for the training of people in the function and problems of government. By the rotation of offices, more people would have the opportunity to serve in~ political office.

According to Jefferson, any person t-Jas eligible for any position of public trust.r: 5 Madison to Jefferson, October 17, 1788, Boyd, Papers, XIV, 19~ .. ,°i" -101-

There was, in Jefferson's thinking, the problem of striking the

delicate balance between the need to take care of the exigencies of

the moment and the far-reaching consequences. The bill of rights

amended to the Constitution would take care of the present situation.

The threat of government against the people was constant. A new,

untried government presented even more of a threat. The "~permanence of

the executiv~ was in the future to be a danger. First there had to be

someone to subvert ~he office and make it into a/life tenure. With

the election of Washington, Jefferson's fears were abated; but he J J (,) - - was mindful of fhe lesser characters who would come along.

Jefferson viewed another balance of values in looking at the

Articles of Confederation versus the Constitution. The diplomatic

and financial situation forced the United States to reconsider its

' ~-:- place in the European world of which it was a part. By its

revolution, the United States did not cut itself off from Europe.

There were commercial ties with England and France. There were

p~sires and the necessity to establish more with other nations. The

United States was indebted to England, France, Holland, and Spain.

Still, it had territorial disputes with England and Spain. It

depended on England's goods and Dutch money. It was intellectually

bound to Europe by culture and language. Not quite strong enough to

stand alone and too strong to consider itself to have to be \ t subservient, the United States had to employ the means to insure its

own national independence and gain its ends of national fulfillment.

In Jefferson's mind, -these issues were held together by a thread of "" - continuity$ There had to be a proper balance to achieve the needs of the present without sacrificing the future.

) \ ' '

-102-

Although Jefferson considered the ~arth as belonging to the

.( living, the germinal idea behind this opinion which he later

developed, came to the surface when he was critically examining the

Constitution during the period of ratification. Although the \i .• Constitution had to provide a means of solving the immediate problems,

it could not present insoluble ones to posterity.

Jefferson demonstrated his tremendous capacity as a practical

.• , thinker and an evaluator of the Constitution during the period of

ratification. Although he was not completely informed of the

immediate situation of the United States from 1784 to 1789, he knew

what was right in a practical sense for the country. Government,

~ after all, was a practical matter. It had to work. -The ideal was

the goal, and there had to be a striving toward it. It was Mr.

Jefferson's practicality which helped him overcome some of his

' objections such as direct taxation, lack of an incorporated bill of

rights, the veto power of the executive, legislative superiority of '

·. ' _] Congress over the states, and an insufficient role of the judiciary in

the government. He had to be able to envision how the government would

function under the Constitution when he came out strongly against a

second federal convention. That convention might tamper with the

delicate mechanism of the Constitution. In another respect, he firmly

advocated a bill of rights, but he wanted that bill to be so amended to

the Constitution that it would not upset the balance of the new

instrument of government.

Jefferson held the people almost as an ideal concept except that

he sincerely considered that they· were able to know what was right for

their own government. He tooked at the Constitutional Convention and

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-103- ·~ the Shays' t Rebellion as expressions of the people. One was enlightened and the other was not. His sense of the practical extended even to the

I I . people. He knew the people of the United States, and he urged that the government be responsible for their education.'·· He did not blame the

insurgents .[ of the Shays' Rebellion for their acts; he blamed their ignorance. It was the fault of the government of Massachusetts for

keeping them in ignorance. These people did not have sufficient information about their government. If they had newspapers and were able to read them with understanding, the rebellion may have never taken place. He-knew that the people could be duped if they were uneducated. Thus he urged Madison and George Wythe to see that the .. people be educated. · He charged Wythe, in particular, to preach against ignorance. Behind the hope that the republic would live on and not ¥' fail its ideals had to be an educated and informed people. ** ** ** ** ** Thomas Jefferson revealed many of his principles when he examined the Constitution of 1787. He became a firm friend of the Constitution and looked at it as a means of providing the best of possible govern ment for the people of his country. Under this Constitution, there would be a respect for law, an order for further development 9f democratic ideals, and the fulfillment of the people as political and social beings. --.

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' I

BIBLIOGRAPHY

':: I. Sources -.it

Birley, Robert (ed.). ' I Speeches and Documents in American History. 4 vols. London: Oxford University Press, 1944. Boyd, Julian P. (ed.). The Paper~ 2f Thomas Jefferson. to date. 16 vols. Princeton, N.J.: Princeton University Press, 1950- • ·,. II

Cappon, Lester J. (ed.). The Adams-Jefferson Letters. 2 vols.· Chapel Hill, N.C.: The Institute of Early America~ History and Culture at \~illiamsburg, ·v1rginia by the University of North Carolina Press, 1959. Fitzpatrick, John C. (ed.). The Writings Qi George \~ashington. 39 vols. Washington, D.C.: The United States Government Printing Office, 1931-44. Koch, Adrienne, and Peden, William (eds.). The Life and Writings Selected 2£. Thomas Jefferson. New York: The Modern 1944. Library,

Lipscomb, Andrew A., and Bergh, Albert Ellery (eds.). The Wr1tings of Thomas Jefferson. 20 vols. l~ashington, D.C.: . The Thomas Jefferson !viemorial Association, 1904. Padover, Saul K. (ed.). The Complete Jefferson.. New York: Duell, Sloan, and Pierce, 1943. II. Secondary Works A. Biography

Brant, -" Irving. James Madison: Father of the.Constitution:/J 1787-1800.------lndianapol is: The -Bobbs-Merrill.------_Company, Inc., 1950. - ... -· -· __ ,_ ... _____ ., ______Brant, Irving~ J~me~ Madison: The Nationalist 1780-1787. Indianapolis: 2 The Bobbs-Merrill Company, Inc., 1948. Malone, Dumas. Jefferson and the Ordeal 2f Liberty. Boston: Little, Brown and Company, 1962.

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' .. ~:..·1'Ja!(".if;..-.;~-·.. ~-iiiiiiiiiiiiiiiiiiiiilliiii ... lllll!lll!l!!llll!llllll!lllll------....------. I

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Malone, Dumas. Jefferson and the Rights of Man. Boston: Little, Brown and Company, 1951.

Mitchell, Broaduso Alexander Hamilton: - Youth to Maturity, 1755-1788. 2 vols. New York: The ~mcmillan Company, 19570

Schachne_r, Nathan. Thomas Jefferson: ~ Biography. 2 vols·...... ,t New Y.ork: Appleton-Century-Crofts, -Inc., 19~1.

Smith, Page. John Adams. 2 vols. Garden, City, N.Y.: Doubleday and Company, Inc.-, 1962.

Van Doren, Carl. Benjamin Franklin. New York: The Viking Press, 1938.

B. - General

Becker, Carl L. The Heavenly City of llt~ Eighteenth Century Philosoohers. New Haven, Conn.: Yale University Press, 1932.

Charles, Joseph. The Origins o( the American t~rty System. New York: Harper and Brothers, 1961.

Farrand, t1ax. The ·Framing of the Constitution of the United States. Nei,1 I-Iaven, Conn.: Yale University, 1913.

Greene, Evarts B. The Revolutionary Generation, 1763-17,,90. New York: The i'1acmi l lan Company, 1943. (

Jensen, Merrill. The Articles of Confederation. ~~dison, Wisc.: The-- University ------of ,visconsin Press, 1948.

Jensen, Merrill. The New ~ati~n: A [ist~r..1:_ 2f th~ United States During the ConfederationL !.,781.:t789. New York: Alfred A. Knopf, 1950.

:Koch, Adrienne. Jefferson and 1'-1adison, The Great Collaboration. New York: WWWAlfred --- A. --Knopf,___ 1950..._ ------

McDonald, Forrest. We the People: The !COI!.~mi~ qrigins of the Constitution. Chicago, Ill.: The University of Chicago Press, 1958.

~1cLaughlin, Andrew Cunningl1am. The Confederation and the . -~ -~ Constitution. New York: Harper and Brothers -- Publishers, 1907.

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Patterson, Caleb Perry. The Constitutional Principles of Thomas Jefferson. Austin, Texas: The University of Texas Press, 1953.

I Peterson, Merrill D. The Jefferson Image .!_!! the American,,-~ Mind. New York: Oxford University Press, 1960. Savelle, Max. The Foundations of American -- ...... , ....._, Civilization. New York: Henry Holt and Company, 1958 • . " ,,.., (('.. Van Doren, Carl. The Great Rehearsal. New York:·The Viking Press, 1948. :III. Articles

Bain, Robert Nisbet; Dyboski, Roman; and anonymo~s, "Poland,tt Encyclo2zaedia Britannica,· 14 ed.; XVIII, 135-141.

F~sher, George P., "Jefferson and the Social Compact Theory," Annual Report of the American Historical Association for the year 1893, (Washington, D.C.: United States Government Printing Office, 1894), 165-177.

" . . / .. Malone, Dumas, 0 Revelance of Mr. Jefferson_;" Virginia Quarterly Review, XXXVII (Summer 1961), 332•349.

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Paul Daniel Caravetta was born in Easton, Pennsylvania on September 14, 1931. He is the son of Francesco and Lucia Caravetta. He attended the elementary and secondary schools of the Easton (Pennsylvania) Public School System and graduated from the high

school in 1949. _ije received the Bachelor of Arts degree from Lafayette College in 1953. In 1956, he was granted the degree of Bachelor of Divinity by the Western Theological Seminary of Pittsburgh, Pennsylvania. From 1956 to 1963, he was a minister of the United Presbyterian Church of the United States of America. From 19,54 to 1963, he was a chaplain in the United States Navy Reserve and in 1963 was discharged with the rank of Lieutenant. From 1962 to 1963, .,,"-...J he attended Lehigh University as a graduate student in History. Since 1963, he has been a part-time assistant in the Department of History of Moravian College, Bethlehem, Pennsylvania •

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